ASA orders Woolworths to withdraw use of advertising slogan
The Advertising Standards Authority (ASA) has ruled that retailer Woolworths (Pty) Ltd must stop using the phrase 'good old fashioned', as it imitates beverage manufacturer Frankie’s Olde Soft Drinks' 'good old fashioned soft drinks' advertising slogan.
In 2006 Frankie’s launched its Frankie's range of drinks, as illustrated below:
The range was based on 'vintage' flavouring, which was emphasised in all promotional material through the use of the slogan 'good old fashioned'. The slogan appeared on all point of sale and advertising material, such as posters, table talkers and fridge wobblers, but did not appear on the product packaging itself.
In 2011 Woolworths, a prominent South African retailer, launched a range of drinks bearing the phrase 'good old fashioned', as shown below:
Frankie's lodged a complaint before the ASA in terms of Clauses 8 and 9 of the ASA Code, in effect claiming that the 'good old fashioned' slogan is its advertising property and that Woolworths was copying it and exploiting the advertising goodwill which it had built up in the slogan.
Woolworths submitted that Frankie's was not using the slogan 'good old fashioned soft drinks' as a trade name or symbol, as it did not appear on the packaging of its product. It claimed that it itself was not using the phrase in a trademark or advertising sense, but rather as a descriptive term to connote an old-fashioned flavouring. Woolworths argued that the phrases 'old fashioned' or 'good old fashioned' are descriptive and do not qualify as advertising property.
In its ruling, the ASA directorate emphasised that it had been called upon to consider only whether Woolworths had exploited any advertising goodwill in, and/or imitated, the slogan 'good old fashioned'. The ASA had not been called upon to consider other aspects, such as whether Frankie's products’ labels and/or bottle shapes had been copied.
The directorate first considered the question of whether the slogan 'good old fashioned' constituted an advertisement and whether, if so, this slogan had been copied by Woolworths. As it ultimately found that Woolworths had in fact imitated the Frankie’s slogan, it did not deem it necessary to consider the issue of exploitation of advertising goodwill.
In determining whether Woolworths had imitated Frankie’s slogan within the context of the ASA Code, the directorate concluded that Frankie's was in fact using the slogan 'good old fashioned' in a trademark or advertising property sense, and not descriptively. The phrase always appeared in quotation marks or in a speech bubble, which gave the impression that the words are attributed to the lady appearing on all of Frankie’s advertising. An example of Frankie's promotional material is shown below:
Woolworths did not show that the phrases 'old fashioned' or 'good old fashioned' are commonly used by other beverage manufacturers in South Africa and are not original to Frankie's. Woolworths did give examples of companies and products which allude to the theme of 'vintage' sodas, but most of these examples are international products, and even these did not necessarily support Woolworths’ argument that the phrase is widely used. The one South African entity which uses the phrase 'old fashioned cream soda' does so differently from Frankie's and uses the phrase in a much more obviously descriptive manner. The directorate concluded that the phrase 'good old fashioned soft drinks' is indeed a crafted advertising property.
In turning to the question of whether Woolworths in fact imitated Frankie’s advertising, the directorate pointed out that Woolworths did not deny that it had copied Frankie’s advertising, but denied only that the phrase 'good old fashioned' was original and worthy of protection. Woolworths did not explain how it had come up with the idea of using the phrase 'good old fashioned' on its product labels. Despite being aware of Frankie’s claimed rights in the slogan 'good old fashioned' (Frankie's had notified Woolworths in writing that it considered the slogan to be its advertising property), Woolworths still went ahead and used the phrase 'good old fashioned' on its packaging. Woolworths offered no explanation for its choice to the directorate.
The directorate concluded that the only reasonable inference was that Woolworths had deliberately and intentionally copied the phrase 'good old fashioned' from Frankie’s advertising. In the circumstances, Woolworths was required to withdraw the packaging in its current form.
Interestingly, Woolworths has, as a result of the widespread press coverage on this challenge by Frankie's, announced that it will withdraw the product altogether.
Megan Reimers, Spoor & Fisher, Pretoria
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