Packaging row turns sour for Master Foods

South Africa

Tiger Brands Limited has succeeded in an appeal to the Advertising Standards Authority's (ASA) Appeal Committee, overturning an earlier ruling that the packaging of its Indulgent Sparkles range of hard boiled sweets with soft centres was an imitation of the packaging of Master Foods SA (Pty) Ltd's Streamers range of similar sweets (Case 1581, June 13 2005).

The Streamers range was reintroduced on to the South African market by Master Foods, a local division of Mars Incorporated, in July 2003. In June 2004 Tiger Brands, in an attempt to compete with the Streamers sweets, launched its Indulgent Sparkles range with similar packaging to that of the Streamers product.

Master Foods lodged a complaint with the ASA, which has a tribunal to deal with advertising disputes. The tribunal ruled in Master Foods' favour after making a comparison between the respective packaging of both ranges of sweets (see Sweet victory for Master Foods in packaging row). It concluded that the packaging for Indulgent Sparkles was so similar to that of Streamers, that consumers looking at both products on a packed shelf would not be capable of distinguishing between the two. It ruled that Tiger Brands had consciously copied the Streamers packaging and misappropriated the existing goodwill that was attached thereto. It ordered that Tiger Brands withdraw its packaging for Indulgent Sparkles within three months of the ruling. Tiger Brands appealed.

The ASA Appeal Committee in its examination of the relevant clauses of the Code of Advertising Practice noted that there were two key issues. Firstly, was there conscious copying of the Streamers packaging by Tiger Brands (coincidental similarities would not suffice)? Secondly, had Tiger Brands taken advantage of the existing advertising goodwill attached to the Streamers packaging?

Evidence from the packaging designer of the Indulgent Sparkles range, which was not available at the hearing before the tribunal, was presented before the committee. The packaging designer gave a detailed account of how the Indulgent Sparkles range of sweets evolved out of investigation and research into the market and also out of a business decision by Tiger Brands to consolidate its Beacon Fruit Salad and Beacon Rainbows brands under the new brand.

The committee accepted this evidence and held that, on a balance of probabilities, there was no conscious copying on the part of Tiger Brands.

In relation to the second issue, the committee emphasized that the Streamers packaging would need to have acquired a reputation whereby the reasonable consumer would recognize it as a brand, sub-brand or the signature of the product itself. It held that despite Streamers being a strong brand in the market, the packaging did not enjoy goodwill in its own right, independent from the STREAMERS mark. The committee observed that much of the packaging of both sweets related to product description. It held that these elements are functional and non-distinctive, making a monopoly over them unattainable. The onus of proving that the Streamers packaging was distinctive to the target market lay with Master Foods. The committee accepted that the Streamers packaging was marketed and used extensively but held that this did not equate to distinctiveness as the main features of the packaging were common in the trade.

The committee therefore set aside the ruling of the tribunal and Master Foods' complaint was dismissed with costs.

Shamin Raghunandan, Spoor and Fisher, Centurion

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