In a ruling against MTN’s claim that its TopUp is the only contract that gives you “Mahala”, the Advertising Standards Authority of South Africa says that the mobile operator has no ownership of the term “mahala”, which is a South African colloquialism meaning “free”.
Writing and legal services company, Clear Copy, lodged a complaint on behalf of Cell C against MTN for a print advertisement that appeared in the Sunday Times on 11 November 2012.
Clear Copy argued that MTN Top Up is far from the only contract that gives certain “free” calls or offers, highlighting Telkom Mobile (8ta) free calls and Vodacom’s free double recharge minutes as examples of similar offerings in the market.
In response to the complaint, MTN’s attorneys said that the word “Mahala” in the advertisement was used as a reference to MTN’s “Mahala” offerings and not in the ordinary sense of “free”.
By distinguishing these two terms in this manner, the attorneys argued that MTN is linking the MTN Top Up contract with the “Mahala” offerings.
While the ASA agreed that it is likely that pre-paid consumers that would be familiar with MTN’s “Mahala” offers (given that it has been offered and promoted since 2009), it was doubtful of how many contract (TopUp) customers would be aware of the link.
“[MTN]’s advertisement deals with contract offers, not pre-paid offers,” the ASA said.
Referring to MTN’s claim on the word “Mahala” as a brand, the ASA said that due to MTN’s own inconsistency of using the brand inter-changeably with the meaning of “free”, consumers are likely to understand it in its ordinary terms.
“The word ‘mahala’ or ‘Mahala’ is incapable of being acquired as a brand because of its every day usage as meaning ‘free’ or ‘for free’,” the ASA said.
“It is used by the respondent to convey to its subscribers and consumers in general that they will enjoy the benefit of free minutes usage under certain terms and conditions stipulated in the various ‘Mahala’ offerings.”
“Furthermore, the relevant advertisement is not correct, and therefore misleading when it states that it is the only contract that gives mahala or free airtime or minutes.”
According to the ruling, MTN has to withdraw the claim, and may not use it again in its current format in future.