In one of the Advertising Standards Authority’s (“ASA”) latest cases, Simba (Pty) Ltd v Gatbro International Manufacturing (Pty) Ltd (25 January 2016), the Simba potato chip brand took on a so-called copycat potato chip brand known as Krunch.
The issue arose when Simba became aware of its competitor’s packaging consisting of a yellow crown device above the name ‘Krunch’ and the use of the slogan “The King of Flavour”. Simba’s packaging also includes a crown device above its name and has the slogans “King of Snacks and “Roarrs with Flavour”.
Simba’s complaint to the ASA was that the Krunch packaging contravened clause 8 of the ASA Code, in that it involved exploitation of its advertising goodwill, as well as clause 9, in that it comprised an imitation of an advertisement. Simba also argued that the slogan “The King of Flavour” was misleading and unsubstantiated as it wrongly implied that its product had the best flavour, which it could not prove.
The ASA held that Krunch had failed to prove that the image of a crown and Simba’s slogans were not Simba’s original intellectual thought. Accordingly, it concluded that “the adoption and execution of the crown together with the reference to a ‘King’ of flavour cannot be regarded as coincidence and it is reasonable for the (ASA) to infer a conscious decision to copy, especially in the absence of a reasonable explanation as to why the respondent adopted this particular get-up.”
In light of this ruling it is clear that trade mark owners can continue to successfully use the ASA as a forum for dealing with trade mark disputes.