South Africa: Advertising Standards Authority Orders Retailer To Withdraw Use Of Advertising Slogan

Last Updated: 24 February 2012
Article by Megan Reimers

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 illustrated below:

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 packaging itself.

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 advertising property.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions