Woolworths must withdraw soft drink packaging carrying the phrase “good old fashioned” which it copied it from a small retailer, the Advertising Standards Authority of SA (ASA) ruled on Wednesday.
“As for whether the respondent (Woolworths) imitated the complainant's advertising, the evidence favours the conclusion that it did,” the ASA found.
Attorneys for Frankie's Olde Soft Drinks complained to the authority after Woolworths packaged a range of vintage-style cooldrinks labelled “Good Old Fashioned”.
Frankie's argued that a customer seeing the same soft drink in Woolworths, bearing the words “Good Old Fashioned”, would believe the Woolworths product was bottled by Frankie's for Woolworths.
Lawyers for Woolworths countered the phrase did not appear on Frankie's packaging and was not used as a trade name.
They asked whether Frankie's could appropriate the words, as the soft drink manufacturer could not claim exclusivity or originality in the phrase.
As such, both companies were followers of a recent worldwide trend of vintage soda flavours. Woolworths also did not use the term for advertising or trademark purposes, but as a description of the flavour.
In the ruling, the ASA considered that Frankie's use of the phrase was not merely descriptive, as Woolworths claimed.
“The directorate notes that although the concept of 'vintage' sodas may not be as new in other countries, it appears to be relatively unexplored territory in South Africa.”
Hence, this was insufficient evidence to support the argument that the term “old fashioned” was widely used in relation to soft drinks.
As such, “Good Old Fashioned Soft Drinks” was found to be a crafted advertising property.
On April 15, Frankie's sent a letter to a Woolworths' supplier indicating it considered the phrase its advertising property. Despite being aware of the claim and the fact that other phrases were considered for the products, Woolworths continued to use “Good Old Fashioned” on its vintage cold drinks.
The ASA found Woolworths “deliberately and intentionally copied the phrase”.
Accordingly, the authority ruled the packaging in its present format had to be withdrawn and could not be used again in future.
“While Woolworths is disappointed with the decision by the ASA, we respect the ruling and will abide by it,” the retailer said.
Frankie's chief executive Mike Schmidt said his company was “thrilled” with the ruling, but felt there were still important issues that needed to be addressed.
“We have won the battle, but not the war.”
He said the ruling was a victory for small businesses. - Sapa