That balloon is ours!
17/02/2009

The Final Appeal Committee of the Advertising Standards Authority (“the ASA”) recently ruled in favour of Procter & Gamble (“P&G”) against Kimberly-Clark of South Africa (Pty) Limited (“KC”).

P&G has, in Europe and North America (but not in South Africa), flighted a television advertisement for its PAMPERS nappy product containing a scene depicting a blown-up balloon inside a nappy to demonstrate the qualities of its nappy. KC in South Africa flighted an advertisement for its HUGGIES nappy product, which also contained a scene of a blown-up balloon inside its nappy. P&G lodged a competitor complaint with the ASA against the KC television advertisement. The complaint was based on Clause 9 of Section II of the Code of Advertising Practice, which deals with imitation of, inter alia, an advertising concept.

All three of the ASA Committees, namely the Directorate, the Advertising Industry Tribunal and the Final Appeal Committee, ruled in favour of P&G, holding that the idea of using a blown-up balloon to advertise the qualities of a nappy constituted original intellectual thought and was therefore a unique and protectable concept. This had been copied by KC.

The ruling of all three committees, but most notably the Final Appeal Committee, makes three important points:

• as long as a trader is committed to start trading (not necessarily advertising) in South Africa, it can seek protection under Clause 9 of Section II of the ASA Code. This is logical in light of the global nature of many businesses;
• seemingly everyday objects, namely a balloon and a nappy, can be used together in advertising to form a unique concept worthy of protection against imitation; and
• in order to establish the likely loss of potential advertising value in South Africa, an advertiser does not have to show advertising value in South Africa. Global advertising value will suffice.

The Final Appeal Committee ruling demonstrates that the ASA is indeed a body which is in touch with the realities of advertising campaigns on a global scale.

Lindie Serrurier
Associate
lindie-s@adamsadams.co.za
17 February 2009