Companies often take what are basically trade mark issues to the ASA because it's quick and cheap. But as yesterday's ruling in the Frankie's v Woolworths case shows, advertising and trade mark issues are not always identical. The ruling deals with Woolworths' use of the term 'Good Old Fashioned' in relation to its range of 'vintage' sodas. The problem – Frankie's has been using the same term for its vintage drinks since 2006. (Frankie's in fact claimed that its entire get-up had been copied, but the ruling simply deals with the phrase). Woolworths raised defences aplenty. You haven't used the term as a trade mark but rather in a descriptive way - it hasn't appeared on your bottle but rather on point of sale material like posters and 'table talkers' (dunno either!), and your trade mark is actually Frankie's and your slogan is 'The taste of yesteryear'.
You can't claim exclusivity to the term, it's common. You're a lightweight and your usage has been small – no TV, radio or print advertising. These issues might have been relevant to Frankie's claim that Woolworths had exploited its advertising goodwill (Article 8 of the ASA Code), but they didn't affect the claim that Woolworths had imitated Frankie's advertising in a manner that was recognisable or evoked the existing concept (Article 9). That's because under Article 9 no confusion is required, nor any extensive usage. What's relevant here is the issue of copying, and the ASA will consider whether the concept that's been copied is central to the theme, and whether it is distinctive or crafted as opposed to being in common usage. The ASA noted that Frankie's had used the term in quotation marks and in bubbles, which suggested that it wasn't a descriptor. And the ASA noted that Woolworths was in fact able to show little or no other usage of the term in SA. So 'Good Old Fashioned' was a crafted advertising property. And it was clearly copied. Woolworths didn't admit or deny copying, but the evidence did show that, as far back as April 2011, Frankie's told Woolworths that it regarded the phrase as its advertising property. And a confidential 'Design Concept Brief' showed that, although Woolworths had a different phrase in mind in June 2011, it then switched to 'Good Old Fashioned' for reasons that weren't explained. It's all so typical – a little'un takes on a big'un, and the response is 'bring it on'. And when the little'un does just that and the public mood turns against the big'un, there's a sudden volte face. A bit like playground bullies!
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