Woolies in sticky mess for alleged soft drink copy

Frankie’s Olde Soft Drink Company has caused a stir this week alleging that major retailer, Woolworths, has plagiarised their packaging and flavours.

Mike Schmidt, co-owner of Frankie’s, which was founded in 2006, said his company was the first to re-introduce root beer into South Africa since the 1960s. He also said several unique flavours, such as cinnamon cola and fiery ginger beer, were “directly and blatantly” copied by Woolworths.

Infuriated, he has laid a complaint with the Advertising Standards Authority (ASA).

In November, Woolworths introduced their new range to stores around the country, which are packaged in near-identically shaped bottles with candy-striped labels.

Schmidt said the products bear design elements of such close resemblance “even regular Frankie’s consumers could not be criticised for their confusion between the beverages”.

Frankie's Cinnamon Cola

But the primary bone of contention, he said, is that Woolworths’ new range includes the phrase “Good Old Fashioned” — one which is firmly associated with Frankie’s and has been used in its marketing for years. The complaint to the ASA asks only that this phrase be removed from the Woolworths products.

But Zyda Rylands, Woolworths managing director of food, said the allegations against Woolworths are unfounded. “We have not infringed any copyright, intellectual property nor registered trade mark.”

Old fashioned drinks are not a new concept, she said. “Flavours such as creme soda, ginger beer and cola are used by a number of soft drink manufacturers and no one company owns the rights to these flavours, and therefore the use of these names.”

Rylands said the shape of the bottle is different. “We do not believe that Woolworths range resembles Frankie’s soft drinks.”

Woolworths claim to have used the nostalgic or vintage design concept for many years in a range of products. “Our designs were inspired by a retro feel, which is a growing trend internationally in retail. We were also inspired by Woolworths products from the mid-20th century.”

But Owen Dean, partner at Spoor & Fisher, a leading South African intellectual property legal firm, said Frankie’s could be successful under a branch of common law known as passing off, which is often used to enforce unregistered trademarks. “If Frankie’s can show that it has a reputation [built around its packaging and flavours] and that Woolworths has copied it, they could be successful.”

The ASA is another avenue as its code also embraces the principles of passing off. “If they can show that the shape of the bottle, the flavour or the slogan of the Woolworths product has caused people to think there is some link or association with Frankie’s, then they have a case,” Dean said.

Schmidt said Frankie’s had met with Woolworths in June 2011, about a potential listing option, but was rejected. Rylands said Woolworths meets with local and international suppliers on an ongoing basis. “Frankie’s did request an introductory meeting with Woolworths to present their products for listing with Woolworths. One of Woolworths buyers met Frankie’s. However as is typical with introductory pitches, it was a very high level meeting and no intellectual property was discussed.”

Schmidt said the public reaction, like that on Twitter, has shown that the public have clearly been misled. “I firmly believe that, had Frankie’s been a bigger company, Woolworths would never have tried this,” he said.

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