Spring Fresh not fresh enough, says tribunal

In Reckitt Benckiser (Pty) Ltd v Unilever SA (Pty) Ltd, the Advertising Industry Tribunal of the Advertising Standards Authority (ASA) has dismissed Reckitt Benckiser's complaint against three separate companies for their use of the term 'Spring Fresh'. The tribunal held that Spring Fresh is a widely-used generic term that has not become a brand or sub-brand in its own right.

Reckitt Benckiser, a multinational manufacturer of cleaning products, owns a registration for SPRING FRESH in Class 5 of the Nice Classification in relation to a range of goods including pharmaceutical preparations. It has also applied to register the same term in Class 3 for bleaching and other types of cleaning preparations. It lodged three complaints with the ASA against:

• Unilever, for using Spring Fresh as a variant name for its HANDY ANDY and DOMESTOS branded products;
  
  
• Colgate Palmolive, for using it as a descriptor for its STA-SOFT marked fabric softener; and
  
  
• Pick 'n Pay, a large South African retail chain, for using Spring Fresh for fabric softeners.

Reckitt Benckiser argued that it had used the term 'Spring Fresh' in conjunction with its JIK and HARPIC branded cleaning products for many years and that the term had acquired an extensive reputation and goodwill. It contended that the three companies' use of Spring Fresh infringed Clause 8 (exploitation of advertising goodwill) and Clause 9 (imitation) of the ASA Code.

Colgate Palmolive submitted extensive evidence that it had used Spring Fresh to describe a product variant of its STA-SOFT product for over 30 years and that the term was also used descriptively on at least seven different products in South Africa. It alleged that the term 'Spring Fresh' is purely descriptive and had become a generic term in the trade. Unilever and Pick 'n Pay also argued that Spring Fresh is nothing more than a widely-used generic term.

The Advertising Industry Tribunal of the ASA agreed and dismissed the complaint. It held that Reckitt Benckiser's Spring Fresh descriptor had not become a brand, or a sub-brand, and that consumers would look for trademarks such as JIK, DOMESTOS or STA-SOFT, not Spring Fresh.

Chris Job, Adams & Adams, Pretoria