Most Read Contributor in South Africa, September 2016
On 30 October 2012 the Advertising Standards Authority (ASA)
handed down a ruling that has important ramifications for the
automotive parts industry. The case involved G.U.D.
Holdings (G.U.D.) and Federal-Mogul. G.U.D. is South
Africa's leading manufacturer and distributor of automotive
filters, and it has been in the business since 1950. The company
sells products under the well-known trade mark GUD, as
well as the trade mark FRAM, for which it is a
licensee. The company's products are sold in major
automotive parts stores including Autozone, Midas, Diesel Electric
and Allparts. The company also manufactures filters for the
following automobile manufacturers - Volkswagen, Nissan, BMW,
Mercedes Benz, General Motors, Ford and Toyota. G.U.D. has
developed an elaborate parts numbering system for its GUD
products over the past 60 years, and it has copyright in this
system. It also has the rights to the numbering system used for the
FRAM products. The GUD and FRAM parts
numbering systems are distinctive, well-known and associated with
G.U.D. Federal-Mogul is a competitor of G.U.D.'s, having
entered the automotive filters market in late 2011 with its
CHAMPION brand of products.
G.U.D. lodged a complaint with the ASA about a brochure that
Federal-Mogul used for its CHAMPION brand, and which was
headed 'Quick Reference Code Guide For CHAMPION
Filters'. The complaint was that the brochure made claims
that could not be substantiated, and that were therefore
misleading. The complaint went on to say that the brochure
contravened the provisions of the ASA Code relating to
comparative advertisement and disparagement. This related to
the fact that the brochure compared CHAMPION filters
to those of a competitor, and declared the CHAMPION
products to be superior. Although the brochure made no
reference to the GUD or FRAM trade marks, it
did list (cross reference) all the CHAMPION part
codes against the corresponding GUD and
FRAM part codes. In the process, Federal-Mogul made it
quite clear that the competitor concerned was G.U.D. In
addition, complained G.U.D, Federal-Mogul blatantly used the
distinctive and well-known GUD and FRAM parts
numbering systems as a marketing tool for the CHAMPION
products. G.U.D. gave notice that it would consider filing a
separate copyright infringement case.
On the issue of misleading claims, G.U.D. argued that the
comparisons contained in the brochure were unfair, and that the
results used were selective. G.U.D. argued that Federal-Mogul
was wrongly comparing the filters simply in terms of efficiency,
without taking life/capacity into account. It argued that you
can't evaluate a filter simply with reference to its ability to
stop dirt, contaminants and particles passing through it, because
once the filter's clogged a valve opens up to bypass it - the
valve then allows these impurities to pass through, and this is
obviously undesirable. G.U.D. claimed that its products are in fact
designed to get optimal life/capacity according to OEM's
(Original Equipment Manufacturer's) specifications.
During the course of the ASA proceedings certain issues were
resolved but, although Federal-Mogul made it clear that it would no
longer be using the brochure, it did not give any undertakings to
stop using various claims. The ASA therefore had to decide whether
the following claims that were made by Federal-Mogul about its
CHAMPION filters, and about how these filters compared to
the GUD and FRAM filters, complied with the ASA
'Not only protect engines from harmful particles, but
enhance performance as well.'
'Champion came out tops.'
'Independent laboratory ... undergoing an efficiency and
capacity test, results showed the impressive performance of
Champion oil filters.'
'Enough holding capacity to last between service
'Clear that Champion Oil Filters outperform the tested
The ASA ruled that the Code makes it very clear that an
advertiser must have documentary evidence to support any
claims that are capable of objective substantiation, and that this
evidence must come from an independent credible expert. The
ASA did not accept Federal-Mogul's argument that its brochure
simply claimed that its filters outperformed GUD and
FRAM filters in terms of filtration efficiency, because it
also made some reference to life/capacity. The evidence which
Federal-Mogul had, and which came from a US-based testing facility
called IBR, did not support the various claims. In fact, it
consisted of no more than raw data, and it offered no conclusions
at all. This meant that the claims could not be
substantiated, and that they had to be withdrawn.
A comprehensive victory for G.U.D. then. And a reminder that you
have to be very careful about making unsubstantiated claims in your
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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