Thursday 4 June 2009

Darren Olivier

South Africa going orange: iBurst again

Why it is that everyone seems to want exclusivity to the colour orange? The latest decision on single colour exclusivity comes from the highly effective Advertising Standards Authority which denied iBurst protection, for the second time.

Sarah-Jane Pluke, a partner at IP specialists
Moore Attorneys, successfully argued for Neotel twice now (this is an appeal decision) that iBurst should be denied its request for relief. Her report on BizCommunity can be located here.
"...assuming that advertising goodwill could arise out of the widespread and sustained use of a colour, it would have to be shown by an advertiser that it had exclusively made use of the colour and had through such exclusivity of use, acquired protectable property in such use."

Afro Leo wonders whether there is an irony that iBurst may themselves be accused by Orange Telecom of misappropriating the colour orange under the far-reaching ASA code, which also states, controversially, that: "An advertiser should not copy an existing advertisement, local or international, or any part thereof in a manner that is recognisable or clearly evokes the existing concept and which may result in the likely loss of its potential advertising value. This will apply notwithstanding the fact that there is no likelihood of confusion or deception or that the existing concept has not been generally exposed." For the ECJ ruling on colours (co-incidentally also orange click here) seems though, that only a lemon takes on an orange these days.

And...South Africa’s television content industry is gearing up for its protest action against public broadcaster SABC’s financial and management crisis this afternoon in Johannesburg and Cape Town at 12 noon. For details of the protest click
here. For the Afro-IP and IP Finance views click here and here.

Darren Olivier

Darren Olivier

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4 June 2009 at 11:38 delete

Orange Telecoms and iBurst are represented by the same in RSA.