5 July 2008 by Cliffe Dekker Hofmeyr

The Advertising Standards Authority (ASA), autobahn of IP protection

Protecting Intellectual Property rights can often be expensive and time consuming – especially when following the "old fashioned route" of High Court applications. The Advertising Standards Authority (ASA) has however developed into an effective mechanism to handle an array of Intellectual Property issues. Words such as "swift, flexible, inexpensive and effective" are being used to describe this body, and the ASA seems to be the highway to quick and effective results.

The ASA is an independent body, established to protect the public interest and to resolve disputes concerning advertising for the benefit of consumers and competitors. The ASA has published a Code of Advertising Practice, which is based on international best practice. The Code covers printed media, as well as radio and television and furthermore enjoys statutory enforcement via the Independent Broadcasting Authority Act and Electronic Communications Act.

The Code identifies a number of ways in which advertisements can offend. These include, inter alia, dishonesty, discrimination, offensiveness, unsubstantiated claims and unfounded guarantees. Most of the complaints relating to Intellectual Property rights relate to the exploitation of advertising goodwill, imitation of original intellectual thought and advertisements likely to mislead the consumer.

Exploitation of goodwill occurs where an advertiser attempts to take advantage of the advertising goodwill relating to another party's advertising campaign, property, packaging or trademarks. Both the proprietor of a registered trademark, and a proprietor who has, as a result of its use acquired a reputation and goodwill in a trademark or get-up at common law, could use the Code to prevent others from infringing upon their goodwill. Consumers must associate the advertising concept with that of the complainant and the likelihood of confusion, deception and diminution of goodwill will be taken into account to establish whether there is exploitation of goodwill.

Imitation of original intellectual thought means that an advertiser is not allowed to copy an existing advertisement, or any part thereof, which may result in the likely loss of potential advertising value. In assessing whether there is copying it is important to determine how the "infringer" came up with the idea or concept. The ASA could impose or order a number of sanctions ranging from an amendment or withdrawal of an advertisement, including the packaging of a product, to an order that future advertisements should be submitted for pre-clearance.

The costs involved in lodging a complaint with the ASA are dwarfed by the alternative High Court litigation.

Considering all of this, it is easy to understand why many people are avoiding the dirt road to the Courts and taking the ASA Autobahn.

Eben van Wyk, Director and Head of the Intellectual Property Practice, and Rico Burnett, Associate, Cliffe Dekker Hofmeyr.

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