Neotel, iBurst battle over orange
Attorneys Adams & Adams, on behalf of iBurst, has lodged a competitor-complaint against Neotel’s advertising with the Advertising Standards Authority of South Africa (ASA).
iBurst said that it had made widespread and extensive use of the colour orange in advertising its wireless internet services since May 2006. According to the broadband provider it had spent almost R50 million in advertising and promoting these services in various media while at all times using the colour orange.
“The adoption of a particular colour as a signature advertising element in which goodwill is created is common in the telecommunications industry. For example, the colour red is being used solely and exclusively by Cell C. MTN uses yellow and Vodacom blue,” iBurst argued.
According to iBurst “it is clear that the colour orange is not simply a brand element or decorative feature used by the complainant. The colour itself has acquired a secondary meaning such that members of the public associate it exclusively with the complainant in the field of telecommunications services. The colour has become a signature of iBurst’s services.”
Neotel responds
Moore Attorneys, on behalf of Neotel, submitted that iBurst’s contention that the colour red was used solely and exclusively by Cell C, and blue by Vodacom, was fundamentally incorrect. “Red is also used by Virgin Mobile and Vodafone, for example, and blue is used by Telkom.
“There are several industry players in the telecommunications market who appear to co-exist differentially and without confusion in, for example, the red, blue and green colour spheres. It is therefore inconceivable that a single industry player can assert a monopoly in and to the use of one of the limited colours available to traders.”
Neotel argued that the color orange was merely one component of a brand, and that there was no confusion between Neotel and iBurst’s products.
Ruling
The ASA was not convinced by iBurst’s arguments, saying that there was no evidence to suggest that consumers separate the colour orange from iBurst’s trade name and bubble device in their minds, and that they identify the complainant’s services by the colour alone.
“In addition, Neotel provided examples of other companies also making prominent use of the colour orange in their branding and advertising, such as Orange and Axxess DSL. If nothing else, this at least negates any argument of exclusivity and signature in the colour orange.”
The ASA said it was unable to conclude that iBurst’s use of the colour orange constituted a signature of its service and the complaint against Neotel was dismissed.
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