JUrISdIctIOn repOrt: SOUtH AFrIcA
A SHAmpOO tAntrUm?
Andrew papadopoulos
DM Kisch Inc.
Alberto Culver Company’s TRESemme haircare products, which for
“ p&G cOmpLAIned tHAt tHe cLAImS In
many years had been available as a salon-only product in South Africa,
tHe AdVertS Were mISLeAdInG becAUSe
were relaunched in 2006 as retail products. This followed a similar
repositioning of the products internationally.
tHeY ImpLIed tHAt treSemme prOdUctS
cOntInUe tO be USed bY A ‘SIGnIFIcAnt’
Advertising for the relaunched TRESemme product (which has made
significant inroads in the retail market) has prompted attacks by
nUmber OF prOFeSSIOnAL StYLIStS In HAIr
competitors in several jurisdictions. The advertisements in South Africa
SALOnS And tHAt tHe ALLeGed cLAImS
attracting competitor complaints typically assert that:
reQUIred SUbStAntIAtIOn.”
“You don’t have to pay a fortune for professional products… not when
there’s TRESemme.
“It used to be that you could only get professional results in the salon.
And at a price. But now TRESemme gives you a range of professional
performance products without the salon price tag…Professional.
A ff o r d a b l e .”
The packaging of the products themselves display the caption ‘Used by
professionals’.
Procter & Gamble S.A. (Pty) Limited (P&G) lodged a complaint with
the Directorate of the Advertising Standards Authority of South Africa
against Alberto Culver (Pty) Limited’s (A-C) print and television
The AIT upheld the appeal, stating that it did not believe that any of the
advertisements for its TRESemme haircare products. P&G complained
advertisements in issue in fact claimed that TRESemme products are used
that the claims in the adverts were misleading because they implied that
by a significant number of professionals in salons. Furthermore, it found,
TRESemme products continue to be used by a “significant” number of
contrary to the Directorate, that the average reasonable consumer would
professional stylists in hair salons and that the alleged claims required
not interpret the adverts to claim that TRESemme was used by a significant
substantiation.
number of professional hairstylists in salons.
The Directorate took the view that because TRESemme products were
The AIT, in any event, further held that there was sufficient independent
distributed through the retail sector, A-C had an onus to prove that the
and expert evidence in the form of numerous affidavits and declarations by
products continued to be used by a significant number of professionals
stylists (both local and international) confirming their use of TRESemme
in hair salons.
products, in various professional contexts, to support the ‘Used by
The Directorate then held that the evidence that A-C lodged substantiating
professionals’ caption that appears on the product packaging.
continued use of TRESemme by professionals was insufficient to show
It is evident from this case that complex advertising messages, especially
significant use of the product in salons, and ordered the withdrawal
where they succeed in their commercial objectives, unfortunately attract
of not only the advertisements, but also all the TRESemme product
competitor attacks in the world’s advertising standards forums, which
packaging that displayed the caption ‘Used by professionals’.
can result in rulings that have commercially severe consequences if the
A-C appealed the Directorate’s decision to the Advertising Industry
complaint is upheld.
Tribunal (AIT), furnishing expert evidence that the Directorate had
misconstrued how the public would perceive the advertisements. In doing
so, the AIT held that the Directorate had postulated an unwarranted
claim, which further (unjustifiably) needed to be proved—ignoring the Andrew Papadopoulos is a trademark associate at DM Kisch Inc. He can
‘totality’ of the advertisements complained about. be contacted at: AndrewP@dmkisch.com
72 World Intellectual property review September/October 2009 www.worldipreview.com
Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84