A few months back, we reported on the decision of the Advertising Standards Authority of South Africa (ASA) in the case of SAB v Brandhouse in the matter involving Castle Lite and Amstel Lite (fifty shades of silver and ...).

The facts of the case were as follows: SAB's Castle Lite – South Africa's first low-carbohydrate beer and the only premium low-carbohydrate beer on the market until August 2014 – has been around for over 20 years. It's always been sold in a get-up comprising the colours silver and green, together with the red and white logo, and the world "Lite" appearing prominently below the logo. When Brandhouse's Amstel Lite hit the shelves in August 2014, it did so in a get-up that SAB felt was far too similar.

SAB pointed to the fact that Brandhouse had used the exact same shade of silver and that it had used a shade of green that was virtually indistinguishable from the green used for Castle Lite. SAB also complained that Brandhouse had used the word "Lite" rather than "Light" prominently below the logo. It pointed out that other low-carbohydrate beers on the South African market, like Windhoek and Bavaria, used the world "Light", and get-ups that weren't confusingly similar to that of Castle Lite.

The ASA agreed with SAB. It found that, as a result of SAB's extensive and consistent usage of its get-up, it had acquired "advertising goodwill" in the packaging, specifically its six-pack shrink wrapping and its can. It held that SAB's advertising goodwill had been diminished and exploited, and that clause 8 of section II of the ASA Code had been contravened. The ASA ruled that the Amstel Lite packaging had to be removed within three weeks.

This ruling was followed by some interesting activity. First, Brandhouse lodged an appeal to the Advertising Industry Tribunal (AIT). But, in order to ensure that the order that it remove its packaging was suspended, it also approached the ASA's highest appeal authority, the Final Appeals Committee (FAC), for an order suspending the order of the Directorate pending the appeal to the AIT. Judge Ngoepe of the FAC concluded that the FAC did not have the authority to make such a ruling. So, Brandhouse approached the Gauteng High Court, where Judge Bertelsmann ruled that the FAC did have the power to grant a suspension of the ASA's ruling pending the appeal to the AIT and Judge Bertelsmann himself ordered such a suspension.

The decision of the AIT has now been handed down. The appeal related to specific issues only. These included whether the Amstel Lite shrink wrapping and can contravene the ASA Code – the Amstel Lite bottle was not in issue. In addition, the AIT had to make a determination about certain survey and expert evidence that I'll discuss later.

The AIT said that Brandhouse had admitted that it had designed the Amstel Lite packaging with Castle Lite in mind, but that it had sought to distinguish the product from the market leader. The AIT felt that Brandhouse had succeeded in its quest, certainly insofar as the can was concerned. The AIT pointed, for example, to the fact that the companies used different fonts and colours for the word "Lite". But, most importantly, the Castle Lite can had a blue-coloured temperature indicator around the top of it, something that Amstel Lite didn't have. The AIT described the temperature indicator as "unmistakable" and "the most memorable aspect of the can". It went on to say this:

"It is this temperature indicator that clearly distinguishes the two products. There can be no reasonable likelihood of confusion between them considering that they have distinct marks. Placed side-by-side, no reasonable consumer is likely to be duped by the common colours between the two products."

The shrink wrappings were, however, different. The AIT said this: "Both the Castle Lite and the Amstel Lite wrappings are predominantly silver with similar green and red additions. The wrap covers the cans and bottles and the actual product can only be seen from the side of the wrap, and then with the top and bottom covered. The distinctive blue temperature indicator on the Castle Lite can is, because of its positioning, naturally covered by the wrap ... . Placed side-by-side, it is highly likely that a reasonable consumer would be confused and deceived by the common colours between the two products."

So, the result was that Brandhouse did not have to make any changes to the Amstel Lite can, but that it was required to withdraw the shrink wrapping.

The AIT also considered an Ask Africa survey that had been submitted by SAB, and that supposedly demonstrated the extent of the consumer confusion. The AIT felt that this survey wasn't reliable as it had been done at a time when Amstel Lite had just been introduced, and the public was not yet aware of the competing product – the people who had been surveyed had seemingly been shown colours without trade marks or logos and asked which beer they associated these colours with. As for the so-called "Carliss Report'', which had assessed in great detail the similarities between the get-up of the two products, the AIT said that the person behind this had not been independent because his firm had been involved in the creation of the Castle Lite packaging.

The case is a good example of how passing off-type cases can sometimes be brought to the ASA and how, in appropriate circumstances, mere colour can be a source indicator. It also illustrates how very detailed inquiries of this nature can be. Finally, it brings home the fact that parties to ASA proceedings need to be very careful about the nature of the evidence that they lead.

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