THE CAT’S OUT OF THE BAG
intended to promote the sale, leasing or use of any goods or services; or which appeals for or promotes the support of any cause”.
The ASA then dealt with the trademark issues. It said this: “While the respondent is correct in noting that the ASA is not an appropriate forum to dispute trademarks, a complaint in relation to advertising goodwill associated with trademarks and/or other distinctive advertising properties falls squarely within the ambit and jurisdiction of the ASA … similarly, disputes about alleged imitation of such distinctive advertising properties, veracity of claims and potential deception also fall within the purview of the ASA.”
The ASA went on to deal with the complaint of the slogan “The King of Flavour” being misleading and unsubstantiated. Unsurprisingly, it rejected the complaint, describing the slogan as permissible puffery or hyperbole.
It said: “The claim is not a statement of fact, but an exaggerated expression of opinion. A hypothetical reasonable person reading the claim would understand this, and would not be misled into thinking that it is an objective statement. As such, the claim cannot be regarded as misleading or unsubstantiated as alleged by the complainant.”
The ASA finally dealt with the claim of imitation. Clause 9.1 states, inter alia, that an advertiser should not copy an existing advertisement, or any part thereof, in a manner that is recognisable or evokes the existing concept and which may result in the potential loss of advertising value. It further states that the following factors will be considered when deciding whether imitation took place: the extent of exposure, period of usage and advertising spend, and whether the concept is central to the theme, distinctive or crafted as opposed to in common use. The competitive sphere must also be taken into account.
The ASA referred to an earlier decision that said clause 9.1 seeks to punish “conscious copying of original intellectual thought, and that it was not sufficient for an advertisement that merely contains coincidental similarities to be regarded as imitation.”
The ASA discussed the fact that Simba’s crown device has been used since the 1960s, that it has been registered as a trademark, that the slogan has also been registered as a trade-
Simba’s complaint was that the Krunch packaging contravened clause 8 of the ASA Code An advertiser should not copy an existing advert, or any part thereof, in a manner that is recognisable