THE CAT’S OUT OF THE BAG

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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

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