A local fabric softener brand has been ordered to change its labelling after the advertising regulatory board found that its use of the word "soft" was imitating rival brand Sta-Soft.
The complaint was lodged by the Colgate-Palmolive Company, which owns the popular fabric softer Sta-Soft, against Bliss Brands, which markets MAQ Soft.
In its complaint, Sta-Soft argued that its competitor was imitating the distinctive features of the Sta-Soft bottle in order to take advantage of Sta-Soft's brand name and advertising goodwill, causing confusion among consumers. To back this up, it provided research it had commissioned which showed consumers were becoming confused between the two brands.
The advertiser denied its fabric conditioner was piggybacking on Sta-Soft's reputation, saying the MAQ brand had been on the market since 2003 and the public was well acquainted with it. It argued that Sta-Soft could not claim any exclusivity over the word "soft", and also slammed Sta-Soft's consumer research, saying it was “deliberately manipulated to provide a predetermined outcome.”
In a 11-page ruling published late last month, the advertising regulator first had to establish whether goodwill exists for Sta-Soft's brand. It found that it did, saying the fabric conditioner was a "well-known brand" whose packaging, "even without the trade mark, is recognisable to a large number of South African consumers".
The regulator was then faced with the tricky question of whether it could find that MAQ Soft's bottle was imitating Sta-Soft's: Would a hurried consumer grab the wrong product off the shelf? It concluded that there was not enough evidence to find that shoppers would become confused between the two brands, adding that the surveys provided by Colgate-Palmolive Company were not up to scratch.
"The very different brand names outweigh any other similarities," it said.
The imitation game
But on the separate question of imitation, the regulator found that the use of the word "soft" – introduced by MAQ on its fabric softener bottle packaging in 2018 – was indeed imitating Sta-Soft. MAQ previously used the word "boost".
"The biggest issue … is that there appears to be no reason given for the change from “boost” to “soft” – two very different words. The advertiser has changed its packaging by the addition of the word “soft” in a manner that makes it very similar to the complainant’s," it found.
(Photo via Advertising Regulatory Board)
In its ruling it noted that a finding of imitation could be upheld, even when there is "no likelihood of confusion or deception".
"There is no explanation for this change, and the change is both out of line with the labelling of other products in the category and with its own in-house style," the regulator found.
"The only conclusion that the directorate can reach, in the absence of proof to the contrary, is that the move was made in imitation of the market leader’s packaging."
The authority found that the advertiser was in breach of the Code of Advertising Practice and has ordered it to scrap the refernce to "soft".