“What is significant in terms of the ruling is that although the brands Aunt Caroline and Golden Magic are clearly distinguishable, Tiger Brands has the rights to the image of Aunt Caroline,” says Megan Reimers, a partner at Spoor & Fisher.
“The ruling confirms that Tiger Brands was correct to complain that Golden Magic's smiling bespectacled lady with white hair was too close to its well- known ‘Aunt Caroline' image, which has been used in South Africa for over 40 years.”
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.
Clause 9 provides that an advertiser should not copy an existing advertisement or any part of it in a manner that is recognisable or clearly evokes the existing concept and which may result in the loss of potential advertising value.
“This applies regardless of the fact that there is no likelihood of confusion or deception, or that the existing concept has not been generally exposed,” adds Reimers.
“The ASA ruled that Clause 9 protects against the copying of ‘original intellectual thought' and that it consequently needed to establish whether the ‘Aunt Caroline' image constitutes ‘original intellectual thought'.”
The evidence put before the ASA included the following:
On the strength of this evidence, the ASA ruled that the image does constitute “original intellectual thought” and that it is central to the theme of the advertisement, distinctive and crafted.
“It is not only the brand name which distinguishes a product - other elements, such as the ‘aunt' image in this case, can also act as distinguishing features,” Reimers notes.
With regard to the question of similarity, or imitation, the ASA emphasised that it was up to Golden Magic to prove how its advertising concept came to be. Golden Magic had, however, failed to explain why it had used an image which was so similar to Tiger Brands' well-known one. “In the absence of such proof, it is proper to draw an inference from what has not been said,” Reimers says.
In its response to the objection, Golden Magic offered to amend its packaging by changing the colour orange to yellow and removing the utensils in the image. However, the ASA ruled that this would not address Tiger Brand's main concern, which was the use of the “aunt” image.
The ASA found that Golden Magic 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 Golden Magic only appears to trade in a small market was not regarded as significant.
“The ruling underscores the fact that advertisers are not allowed to imitate an existing advertising concept, and that packaging qualifies as an advertisement in its own right,” says Reimers. “With the ruling in Tiger Brands' favour, retailers are no longer allowed to stock Golden Magic in its existing packaging.”
