Brands invest considerable effort in crafting unique messages that resonate with their audience. But what happens when an advertisement from one company seems to echo the themes, tone, or concepts of a competitor’s campaign? This was the central issue in a dispute between Allan Gray and Nedbank, which led to a ruling by the Directorate of the Advertising Regulatory Board (ARB).
Allan Gray this month complained to the ARB about Nedbank’s advertising campaign based on the payoff line and core concept, “Time is more valuable than money. Spend it wisely.” The campaign includes a television commercial, social media posts, videos, and related digital marketing.
Allan Gray submitted that Nedbank’s campaign “imitates, evokes, and exploits” the asset manager’s long-standing “human value of time” advertising concept. This concept, which is central to Allan Gray’s advertising, highlights the importance of time in building long-term wealth and the regret of not using time wisely.
According to Allan Gray, Nedbank’s campaign closely resembled its own messaging, with similar themes around time and regret. The company contended that this imitation threatened to dilute the advertising value it has carefully built over time.
The essence of Allan Gray’s complaint was that the Nedbank campaign infringed upon its intellectual property by evoking a similar concept in a way that could harm Allan Gray’s established brand identity and customer perception.
Nedbank’s response
Nedbank, in its response, acknowledged the thematic similarities between its campaign and Allan Gray’s but denied any intention to copy or infringe on Allan Gray’s intellectual property.
Nedbank argued that the concept of time is not exclusive to any one brand; it is a universal theme that has been explored in various contexts by many advertisers.
Nedbank’s campaign focuses on the value of saving time through digital banking, whereas Allan Gray’s concept centres on the value of time for long-term wealth creation. Nedbank contended that its campaign, which emphasises how digital banking helps to save time and the regret of not using one’s time wisely, was fundamentally different from Allan Gray’s message.
The bank said the concept of time and regret is a shared narrative among many cultures, and its campaign was not designed to infringe upon Allan Gray’s unique combination of advertising elements.
The Directorate analysed the similarities and differences between the two campaigns in light of the Code of Advertising Practice’s prohibitions against exploiting a provider’s goodwill and copying another advertisement.
Exploitation of advertising goodwill?
Clause 8 of section II of the Code prohibits advertisements from exploiting another party’s advertising goodwill or trade name unless prior written consent has been obtained. The clause considers factors such as the likelihood of confusion, deception, and diminishing advertising goodwill.
The Directorate acknowledged that Allan Gray has established advertising goodwill in the “human value of time” concept, particularly in the combination of certain elements such as colour schemes, layout, and execution. However, it cannot monopolise certain generic elements. For example, emotive storytelling, black-and-white commercials, and the use of voice-overs are not unique to Allan Gray’s brand.
The concept that “time is valuable” is widespread and used by various entities. Despite Allan Gray’s history with the concept, it cannot claim a monopoly on the idea itself.
The Directorate found significant distinctions between Allan Gray’s “human value of time” concept and Nedbank’s advertising campaign:
Allan Gray focuses on using time for long-term investing, whereas Nedbank’s campaign emphasises simplifying banking to save time, which can then be spent on more meaningful activities.
Allan Gray’s adverts often use black-and-white visuals with a particular focus on shadows and contrast, whereas Nedbank’s ads use its signature green and different visual techniques.
The Directorate concluded that Nedbank’s campaign is not an imitation of Allan Gray’s advertising goodwill. The differences in the messaging, visual style, target market, and campaign focus make the advertisements distinguishable.
The Directorate rejected Allan Gray’s claim that Nedbank has exploited its advertising goodwill, finding no breach of clause 8.
Imitation?
Clause 9 of the Code addresses the issue of imitation in advertising. Specifically, it states that an advertiser should not copy an existing advert – whether local or international – or any part of it in a way that is easily recognisable or clearly evokes the original concept. This could lead to a loss of potential advertising value for the original advertiser.
The Directorate considers factors such as the extent of exposure, period of usage, advertising spend, whether the concept is central and distinctive, and the competitive sphere. Even if there is no likelihood of confusion or deception, or if the concept has not been widely exposed, infringement can still occur.
The Directorate acknowledges that a unique combination of common elements can still result in an enforceable right. However, these rights must be enforced cautiously to avoid stifling competition.
The Directorate found there are sufficient differences between Nedbank’s campaign and Allan Gray’s advertising. Although there are some thematic similarities, such as the use of time and regret, these similarities are not substantial enough to classify Nedbank’s campaign as imitation.
Allan Gray’s adverts focus on time in relation to long-term wealth creation and the regret of lives cut short, whereas Nedbank’s campaign revolves around saving time through digital banking and the regret of not using time wisely.
The Directorate concluded that Nedbank’s campaign does not breach Clause 9. Although both campaigns explore themes around the value of time, the differences in execution, context, and focus prevent the claim of imitation. Additionally, the shared use of time and regret as themes does not by itself constitute a violation of the Code.
