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
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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The African Regional Intellectual Property Organization's ("ARIPO's") amended Harare Protocol on Patents and Industrial Designs (the "Protocol"), came into effect on 1 January 2017 and includes some important changes.
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