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Another decision on the protection of the advertising concept: the “Little Devils” case
星期五, 03 2月 2017 09:53

Another decision on the protection of the advertising concept: the “Little Devils” case

Ilaria Gargiulo

On November 25, 2016, the Institute of Advertising Self-Regulation (IAP) passed judgment on the theme of protection regarding advertising ideas in a case between the “little devils of the sore throat” by NeoBorocillina (Alfa Wasserman S.p.a.) and Benactivdol Gola (Reckitt Benckister Italia S.p.a.) and the TV commercials in which the “little devils” antagonize the victim of the sore throat and then are later eliminated by the healing properties of the advertised products.  The Jury recognized that, although some differences were found in the second part of the two videos, the central element was identical “in which the effects of a sore throat were expressed figuratively and fictitiously… thus not only the visual technique and narrative theme were equal in this regard, but also the posture, gestures and role of the characters”. 

Reckitt defended their communication through breaking down Wasserman’s advertising into individual expressive elements and by emphasizing the differences found.  However, in the IAP provisions, what is important is the assessment of the impact that the marketing communication creates as a whole on the average viewer.  These average viewers, when watching the videos, “are exposed to a form of reception by the message that does not drive them to complete the puzzle of discovering the difference”.  For this reason, the Jury held that this was a case involving slavish imitation according to article 13, first paragraph of the Code of Advertising Self-Regulation.  This provision was designed primarily to prevent the likelihood of confusion among marketing communication, such as instruments of competition between different companies.

On the contrary, a violation of the second paragraph of the quoted article was not recognized (this paragraph prohibits any form of exploitation regarding the name, trademark, and image if this is done so in a way to make unjustified profit).  This violation was not recognized because of the “lack in successful transfer of fame between the two uncontested leaders of the market” and also because there was no hypothetical exploitation of the distinctive signs belonging to the third party.  In fact, Wasserman argued that the little red devils that characterized for years their advertising, were already part of their company image and therefore a particular, distinctive element.  Such a representation, however, is the one from which Reckitt moved away and therefore, the Jury should have recognized a form of protection not so much for the distinctive element of Wasserman per se, but more so in their ideological core.  In denying the possibility of protection, the following concept established under the Code of Self-Advertising Regulation was debated several times: “it is prohibited to proceed with abstractions and turn back from the idea that constitutes the core of the message in its archetype”.  

The IAP has therefore confirmed its orientation regarding both the provisions included under article 13, and more in general, on the protection of the advertising concept as such: not only in terms of the methods in which it is expressed, but also in regards to its conceptual core, so to ensure some of the promotional efficiency of the weaknesses derived from using this advertising in different forms.  This “dilution” of important elements from a communication decreases the impact on the public when the same elements are utilized by other advertisers.  Furthermore, the efficiency decreases also when the advertised products or services are, as in this case, directly related to the competition.

ilaria.gargiulo@milalegal.com