Trefoil comes unstuck
Henkel wins ruling against rival South African distributor over glue stick get-up
After a process that took well over 12 months to be finally settled, the South African Advertising Standards Authority (ASA) ruled in favour of Henkel’s Pritt brand in its complaint that local distributor Trefoil had infringed on Pritt’s advertising goodwill by marketing red glue sticks that featured characters.
In a potentially landmark ruling, the ASA’s Final Appeal Committee (FAC) accepted that red with characters is distinctive of the Pritt tubular glue stick and that the red get-up with characters on the Korean Amos brand of glue sticks – for which Trefoil is the sole agent in South Africa – was an intentional move "to filch the goodwill" of its rival brand.
The ruling overturned two previous hearings which had come out in favour of Trefoil that the use of the colour red in glue sticks was not the property of Henkel. The first hearing, however, had upheld Henkel’s complaint that in-store displays used to merchandise the red Amos glue sticks contravened advertising standards.
As a result of the FAC’s decision, Trefoil was ordered to withdraw all advertising of its red Amos glue sticks immediately, but was allowed to continue selling the product until 30 November. Red Amos glue sticks bought from Trefoil before the November deadline and still in the market may still be sold by dealers until their stocks are depleted, despite efforts from Henkel to have the product withdrawn from the marketplace with immediate effect.
Trefoil’s CEO Alan Robertson was understandably disappointed at the ruling, especially given the two previous decisions in Trefoil’s favour and the fact that the ASA also awarded costs to Henkel.
"I am simply disappointed in that we defended an action brought against us on the colour red and the ruling was made on an issue that Henkel themselves did not allege that we contravened [the combination of the red tubular packaging and characters]," he told OPI.
"Had we defended that allegation the outcome could have been different – the characters on the Pritt stick are little ‘Pritt people’ whereas the characters on the Amos stick are all animations patented across the range of all Amos products."
Robertson continued: "Trefoil has done nothing wrong. We have simply tried to protect the rights of our Amos international principal as any responsible local agent should do. The local market competitor feels their market share is under threat and resorts to a tactic of bullying to defend market share."
Not surprisingly, Henkel had a different viewpoint. The company’s Commercial Director in South Africa, David Berman, told OPI: "We’ve invested for 40 years in this country and spent hundreds of millions of rand developing the brand. Pritt products, advertising and merchandising are predominantly red and, at the end of the day, it was our firm belief that Trefoil was trading off our goodwill."
Trefoil started to market the Amos glue stick in South Africa around ten years ago using a predominantly green and yellow packaging. About two years ago it changed its packaging, a move which the ASA described as "clearly not a natural progression from the old".
Henkel pointed to research submitted during the appeal hearing that showed "the clear association by the vast majority of consumers of the colour red with Pritt". According to the company’s findings, 91 percent of consumers surveyed associated the colour red with the Pritt brand and 52 percent actually use the colour red as the primary identifier of the brand, although no reference was actually made to the colour/characters combination.
Trefoil’s Alan Robertson referred to the ASA as a "big business club" that was acting in the interests of its paying members. He described the organisation’s comment that Trefoil was intentionally "filching the goodwill" of the Pritt brand as "frankly disingenuous", pointing out that Trefoil is simply the local agent for a Korean principal which manufactures and distributes Amos glue sticks to 60 countries worldwide.
"Why Henkel does not escalate this fight into the international arena is a question that needs to be asked," he added.
Whether the German giant will do that is questionable. While OPI understands that its international brand team is looking at the issue, according to David Berman, the Pritt brand in South Africa has remained faithful to its original, predominantly red get-up, whereas different colour schemes are common in other markets.
In Robertson’s view this was because Henkel had already acknowledged that it had "lost the battle", something which is strongly denied by Henkel’s Berman.
"Our new get-up was devised by our advertising agency as part of our curriculum activities in the scholastic market," stated Berman. "It was just coincidental that there was more white in the design."
As a result of the ruling, Trefoil recently introduced a new design featuring a yellow cap. This was created by Amos specifically for the South African market.