Vodacom, having finally realised that colour can be a brand identifier (did news of a competitor annexing the colour yellow filter through?), is furiously trying to persuade us that red is its colour. Pesky little competitor Cell C, which used to be red but then decided to be black, has put out a number of ads that have a little dig at this rather desperate looking rebrand. In the TV ad, Vodacom is depicted as an old blue vehicle halfway through a red paint job, whereas Cell C is a sleek little black number. Cell C uses expressions like ‘But what’s actually under the hood?’, and ‘It takes more than a lick of paint to be SA’s number one network’. Cell C also makes claims of great technological prowess, and of having been voted best mobile broadband service provider for 2010. ‘Who’s the leader now?’ it asks.
Predictably Vodacom rushed off to the ASA. Cell C’s ads are diluting our colour rebrand cried the insecure telecoms giant! They’re disparaging! They imply we’re old fashioned and that we’re just painting over the cracks. Cell C’s technical claims and claims of awards are false! Rubbish said Cell C, we’re simply having a little dig at your rebrand, that’s quite lawful. But basically we’re communicating the benefits of our product.
The ASA was pretty brutal. It found that Cell C’s statement about the award was inaccurate. It held that the technical claims could not be substantiated. It held that a reasonable person would wrongly interpret ‘Who’s the leader now?’ as meaning that Cell C is now the no. 1 network in SA. It dismissed Vodacom's complaint that the blue car was old-fashioned, seemingly because it was a 1994 Nissan Skyline, a car that is apparently regarded as an iconic sports car. But it held that the ads were disparaging of the Vodacom rebrand, saying that the implication was pretty clear – the rebrand was a case of form over substance. Or as a customer was heard saying in a Vodacom shop recently: ‘Instead of spending all that money on this red rubbish, why not spend something on training the staff?’ Dismissing Cell C’s claim that it’s OK to have a dig at a competitor, the ASA quoted from the earlier Chicken Licken decision: ‘The different interests of the parties must be balanced and weighed up...In weighing these two interests up, the right of Chicken Licken to freedom of expression must give way to its obligation not to advertise in a manner which would discredit or be disparaging of its major competitor's product or advertisements.’
Which is a bit different to what the Constitutional Court said in the Laugh-It-Off case - the trade mark right had to give way to the right to comment on the brand. Is this a return to the witless Mother Grundy ASA of old? And does Vodacom just not get it – when you rise to the bait you simply give those taunting you more publicity than they ever could hope to get otherwise? Just take a look at what's going on at the Equality Court right now to see how these things work!
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