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Another provision allegedly infringed upon says that when an ad contains
statements based on scientific knowledge, such as medical or engineering
remarks, those ads must be defended based on opinions issued by regulatory
bodies designated by the Council. In judging the claim, the panel may
request a technical opinion to demonstrate the accuracy or inaccuracy of the
statements placed under judgment.
Another provision cited by the claimants states that if a message conveys
descriptions and comparative arguments, the truthfulness of those messages
must be proven as soon as requested by a third party.
Finally, Colgate asserts that the Unilever campaign is taking unfair
advantage of Colgate’s goodwill.
In responding to the charges outlined above, Unilever claims to have
developed a new visual concept with no connection to Colgate’s products
and goodwill.
Basically, the objective of this “new” concept is to show to the audience that
“Pepsodent” has new features, which is exactly what the claimant claims as
its own: “protection for up to 12 hours” and the claim is technically
demonstrated accordingly by expert opinions all stating that “Pepsodent”
generates protection for up to 12 hours. Unilever’s counterattack is based on
the fact that having proven with technical evidence that “Pepsodent”’s level
of protection is accurately advertised, no ethical infringement can be claimed
by Colgate.
Unilever strongly denies having used any intellectual property assets
belonging to Colgate since its ad campaign is completely new and develops a
new visual concept. In defending its position Unilever states that Colgate
was unable to identify IP assets allegedly infringed.
The Council’s ruling in this case ultimately rejected the claim by Colgate. The
rationale for rejection was as follows: Unilever was able to demonstrate that
statements made on its campaign were technically correct. In fact, the
product Pepsodent was considered “new” and its ingredients generate
“protection for up to 12 hours, even after meals or drinking”, which are the
exact remarks put under judgment by respondents.
Regarding misappropriation by Unilever of Colgate’s Intellectual Property
resources, the Council ruled that a slogan or statement such as “protection
for up to 12 hours” represents a generic concept and as such no party may
claim exclusive rights over the use of such a phrase or slogan. By the same
token, the Council considered that Colgate did not comply with all the
requirements set by prior cases defining the scope of “goodwill”.
Comments: This is a seminal case for the Self-Regulatory Council. The Council while
judging this case made an extensive examination of all legal and ethical
concerns claimed by both parties. The final dismissal of the complaint was
based on the fact that the respondent was able to prove from a technical
standpoint the accuracy of all remarks and statements made during the
campaign. Relief has to be granted only when claimants are able to prove all
the requirements and tests to be afforded protection.