Alternative avenues for litigation in South Africa
The Advertising Standards Authority of South Africa (ASA), has proved to be one of the most expedient and cost-effective forums for dealing with contentious issues pertaining to trademarks, trade names or symbols, rather than launching proceedings in the High Court.
More often than not, trademark proprietors or individuals/entities who have common law rights in a trademark, trade name or symbol opt to utilise the ASA to obtain the requisite relief, where appropriate.
Frankies Olde Soft Drinks CC (Frankies) v Woolworths (Pty) Limited (Woolworths) is one case that comes to mind. Frankies opted to utilise the ASA by lodging a competitor complaint against Woolworths over its use of the phrase ‘Good Old Fashioned’ on soft drinks for sale at its establishments throughout South Africa.
Frankies and Woolworths both sell/distribute soft drinks at various retail outlets throughout South Africa. Woolworths in particular sells a range of products, from foods to household utilities, and has numerous stores around South Africa.
Frankies is a soft drink company the products of which are sold by retail outlets in various provinces in South Africa. It contends that it has used the phrase ‘Good Old Fashioned Soft Drinks’ since 2006 and has acquired advertising goodwill in the phrase. It is important to note that the phrase appeared on Frankies’ point of sale and advertising material (such as posters, table talkers and fridge wobblers), and not on the product itself.
Woolworths launched a range of vintage sodas which, Frankies alleged, copied its packaging and flavours. Frankies lodged a competitor complaint against Woolworths with the ASA.
