The advertising watchdog ruled on 19 December 2007, that Nando's had deliberately copied MTN's advertising in a manner that is unacceptable. In terms of the advertising code of practice an advertiser should not copy an existing advertisement in a manner that is recognisable and which may result in the likely loss of potential advertising value.
Spokesperson for the ASA, Lillian Mlambo said: “The “Yello Hummer” campaign is a clear imitation of MTN's ‘Yello Summer” past summer campaign. Nando's has copied everything from the wording, font, colour scheme and the design layout. The phrase “Yello' HUMMER”- Yellow backgrounds and Arial font.”
“Nando's used the colour yellow, which is pronounced and dominates all MTN's advertising, The word “Y'ello”, The terms “Y'ello Summer” and “everywhere you go” are MTN's registered trade marks,” says Mlambo.
The watchdog ruled that the print advertising is in breach of Clause 9 of Section II, which states, inter alia, “An advertiser should not copy an existing advertisement… or any part thereof in a manner that is recognisable or clearly evokes the existing concept and which may result in the likely loss of its potential advertising value. This will apply notwithstanding the fact that there is no likelihood of confusion or deception or that the existing concept has not been generally exposed… In considering whether or not an infringement has taken place consideration will be given to, inter alia, the extent of exposure, period of usage and advertising spend, whether the concept is central to the theme, distinctive or crafted as opposed to in common use. Furthermore the competitive sphere will also be taken into account.”
