Friday 6 October 2017


A Questionable Ad Campaign from KFC

Some new advertising signs have been appearing in Nairobi. An ad campaign for KFC (technically, the authorised KFC franchisee is Kuku Foods East Africa Holdings Ltd.) involves images of fried chicken meals next to highly praising quotations attributed to "Obama", "Kanye", and "Oprah". A close inspection reveals that these quotes are actually from "Jammo Obama" and "Kanye Otieno", presumably fictional individuals.

The layout of the ad is clearly meant to obscure the names "Jammo" and "Otieno" - these are balanced by opposing solid lines so as to minimise their impact on the viewer.

These ads play dangerously with the law.  Kenya's Competition Act 2010, section 55(a)(v), prohibits false representations that "goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have." Kenya's Consumer Protection Act 2012 has a similar provision.

Notwithstanding that the ads do not in fact state that Barack Obama or Kanye West have endorsed KFC, there is a very clear intention that the target audience is meant to have such endorsements as an immediate first impression. The layout of the ads require a viewer to look very closely in order to see the full names of the endorsement. The ads are positioned to be prominently displayed to motorists (for which close inspection is difficult or impossible, as Nairobi roads demand a high level of attention!).

Several people have recently asked this blogger whether it's illegal to attribute false statements to American celebrities in Kenyan ads. They only realised that this was not in fact occurring when they were told to look more closely at the names on the signs.

This is an example where a factually accurate advertisement is nevertheless misleading (and in this case, seemingly, intentionally misleading).  A similar situation of misleading yet factual advertising occurred when Orange Kenya was compelled to withdraw or change advertisements comparing their mobile calling rates with those of Safaricom.

But what of the IP angle?

Kenya has no law on image rights, but trademark law may apply. A quick search of an online TM database indicates that Obama and Kanye have probably not filed for TM protection in Kenya (although, interestingly, "Oprah" has been registered in Class 26 for hair pieces and wigs).  So there is no infringement of a registered TM, but could there be passing off?  A UK recently court found that unauthorised t-shirts bearing Rihanna's picture was passing off. Perhaps the question here, then, is whether KFC's ads are likely to mislead the public to believe that Obama or Kanye or Oprah said these statements.

Is it illegal?  Perhaps so, although this blogger would want the Advertising Standards Body of Kenya (ASBK) to have their say.  In any case, is it distasteful?  Most definitely.  



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17 October 2017 at 10:37 delete

I remember seeing these when I was home over the summer, however I think trademark, while offering the stronger protection, was perhaps the wrong angle. Passing off, would have been better, given a desire to ensure the protection of the relevant brands.

KFC utilising the goodwill associated with the names Kanye, Obama and Oprah ─ drawing upon cases like Robyn Rihanna Fenty v Arcadia Group Brands [2013] and Irvine v Talksport [2002]. It seems like a clear case of false endorsement, however the determinative factor lies in whether consumers believe these figures actually endorse KFC in Kenya. Although the cited cases are English cases, Kenya, being a commonwealth country, would be able to draw upon the ratio of each case. The only trouble with false endorsement and personality merchandising cases lies with policy reasons that might see cases of personality merchandising denied their day in court, as judges may fear the opening of the proverbial flood gates as was discussed by Birss J in Robyn Rihanna Fenty [2013].

But, you can't deny the genius of the ad campaign. Whether or not you believe those famous characters endorse KFC's products, the ads have you looking at them longer to either confirm or deny their endorsement. The end result is the fact that the seed is planted and you will probably end up paying a visit to KFC.