The Advertising Standards Authority ("ASA") has ruled
that retailer Woolworths must stop using the phrase GOOD OLD
FASHIONED as it imitates beverage manufacturer's "GOOD OLD
FASHIONED SOFT DRINKS" advertising slogan.
In 2006, beverage manufacturer Frankie's Olde Soft Drinks
("Frankies") launched its FRANKIES range of drinks, as
The range was based on "vintage" flavouring, which was
emphasised in all promotional material through the use of the
slogan "GOOD OLD FASHIONED". The slogan appeared on all
point of sale and advertising material, such as posters, table
talkers and fridge wobblers but did not appear on the product
In 2011, Woolworths, a prominent South African retailer,
launched a range of drinks bearing the phrase "GOOD OLD
FASHIONED", as shown below:
Frankies lodged a complaint before the ASA in terms of clauses 8
and 9 of the ASA Code, in effect claiming that the GOOD OLD
FASHIONED slogan is its advertising property and that Woolworths
was copying it and exploiting the advertising goodwill which it had
built up in the slogan.
Woolworths submitted that Frankies was not using the slogan GOOD
OLD FASHIONED SOFT DRINKS as a trade name or symbol as it did not
appear on the packaging of its product. It claimed that it itself
was not using the phrase in a trade mark or advertising sense but
rather as a descriptive term to connote an old fashioned
flavouring. Woolworths argued that the phrases OLD FASHIONED or
GOOD OLD FASHIONED are descriptive and don't qualify as
In its ruling, the ASA Directorate emphasized that it had only
been called upon to consider whether Woolworths had exploited any
advertising goodwill in and/or imitated the slogan GOOD OLD
FASHIONED. The ASA had not been called upon to consider other
aspects - such as whether or not the Frankies products' labels
and/or bottle shapes had been copied.
The Directorate first considered the question of whether the
slogan GOOD OLD FASHIONED constituted an advertisement and whether,
if so, this slogan had been copied by Woolworths. As it ultimately
found that Woolworths had in fact imitated the Frankie's
slogan, it did not deem it necessary to consider the issue of
exploitation of advertising goodwill.
In determining whether or not Woolworths had imitated
Frankie's slogan within the context of the ASA Code, the
Directorate concluded that Frankies was in fact using the slogan
GOOD OLD FASHIONED in a trade mark or advertising property sense
and not descriptively. The phrase always appears in quotation marks
or in a speech bubble, which gives the impression that the words
are attributed to the lady appearing on all of the Frankie's
advertising. An example of the Frankies' promotional material
is shown below:
Woolworths did not show that the phrases OLD FASHIONED or GOOD
OLD FASHIONED are commonly used by other beverage manufacturers in
South Africa and are not original to Frankies. Woolworths did give
examples of companies and products which allude to the theme of
"vintage" sodas but most of these examples are
international products and even these don't necessarily support
Woolworths' argument that the phrase is widely used. The one
South African entity which uses the phrase "OLD FASHIONED
CREAM SODA" does so differently from Frankies and uses the
phrase in a much more obviously descriptive manner. The Directorate
concluded that the phrase GOOD OLD FASHIONED SOFT DRINKS is indeed
a crafted advertising property.
In turning to the question of whether Woolworths in fact
imitated the Frankie's advertising, the Directorate pointed out
that Woolworths did not deny that it had copied the Frankie's
advertising but only denied that the phrase GOOD OLD FASHIONED was
original and worthy of protection. Woolworths did not explain how
it had come up with the idea of using the phrase GOOD OLD FASHIONED
on its product labels. Despite being aware of Frankie's claimed
rights in the slogan GOOD OLD FASHIONED, (Frankies had notified
Woolworths in writing that it considered the slogan to be its
advertising property) Woolworths still went ahead and used the
phrase GOOD OLD FASHIONED on its packaging. Woolworths offered no
explanation for its choice to the Directorate.
The Directorate concluded that the only reasonable inference was
that Woolworths had deliberately and intentionally copied the
phrase GOOD OLD FASHIONED from Frankie's advertising. In the
circumstances, Woolworths was required to withdraw the packaging in
its current form.
Interestingly, Woolworths has, as a result of the widespread
press coverage on this challenge by Frankies, announced that it
will withdraw the product altogether.
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