Aunt Carolines Image Upheld by the ASA
The Advertising Standards Authority (“ASA”) has ruled that the image of “Aunt Caroline” on Tiger Brands’ AUNT CAROLINE rice product, as apart from the AUNT CAROLINE brand, is worthy of protection. Tiger Brands filed a complaint before the ASA against a competitor product, GOLDEN MAGIC.
While the brands AUNT CAROLINE and GOLDEN MAGIC are clearly distinguishable, Tiger Brands complained that the image of a smiling spectacled lady with white hair was too close to its well-known “Aunt Caroline” image.
The complaint was lodged in terms of Clauses 8 (Exploitation of Advertising Goodwill) and 9 (Limitation) of the ASA Code. The ASA Directorate ruled that the GOLDEN MAGIC packaging contravened Clause 9 of the Code and did not consider the question of whether Clause 8 was also contravened.
Clause 9 of the Code provides that an advertiser should not copy an existing advertisement or any part thereof in a manner that is recognizable or clearly evokes the existing concept and which may result in the likely loss of potential advertising value. This will apply notwithstanding the fact that there is no likelihood of confusion or deception or that the existing concept has not been generally exposed.
The Directorate ruled that Clause 9, in essence, protects against the copying of “original intellectual thought” and that it consequently needed to establish whether “The Aunt Caroline” image constitutes “original intellectual thought”.
On the evidence put before it, which included evidence to the effect that the image has been used in South Africa for approximately 40 years; that it was specifically designed and crafted for Tiger Brands’ Aunt Caroline product; that it enjoys a considerable market share in South Africa; that it was rated 8th in the category for “Brands of food kept in the pantry or on the shelf” in the 2006/2007 Markinor Sunday Times Top Brands survey; and advertising expenditure and sales figures, the Directorate ruled that the “Aunt” image does constitute “original intellectual thought” and that it is central to the theme of the advertisement, distinctive and crafted. It is not only a product’s brand name which distinguishes a product – other elements, such as the “aunt” image in this case, can also act as distinguishing features.
With regard to the question of similarity, or imitation, the Directorate emphasized that in disputes such as these, the Respondent carries an onus of proof of how its advertising concept came to be. In the absence of such proof, it is proper to draw an inference from what has not been said. The Respondent failed to explain why it had used an image which was so similar to the Complainant’s well-known image. The Respondent had, in its response to the objection, submitted that it would amend its packaging by changing from the colour orange to the colour yellow and removing the utensils in the image. However, the Directorate ruled that this would not address Tiger Brand’s main concern, which was the use of an image similar to its “aunt” image. In the circumstances, the Directorate ruled that it was satisfied that the Respondent had imitated the packaging of the AUNT CAROLINE rice to an extent likely to result in a loss of advertising value. The fact that the Respondent only appears to trade in a small market was not held to have a significant impact.