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Parody In South Africa: Addressing The Hippo In The Room – Advertising, Marketing & Branding



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A recent advertising parody has caused quite a stir at the
watering hole, and left consumers questioning whether Hippo.co.za
may have been out of line.

The advert, which has already garnered over half a million views
on YouTube alone, is a parody of OUTsurance’s
“saver” advertisements that appears to spoof the
original advertisements that featured Katlego Maboe as presenter.
In the advert, a female driver and male passenger travel in a car,
while discussing car insurance. The male passenger, who bears a
striking resemblance to Mr Maboe, is then ousted from the vehicle,
when it becomes apparent that the driver could have saved more on
her current insurance, had she used Hippo.co.za’s platform to
compare insurance quotes.

After no doubt seeing purple, OUTsurance instituted urgent
proceedings to interdict Hippo’s conduct, arguing that the
advertisement implies that OUTsurance overcharges its clients and
creates an impression that the insurer cannot be trusted to offer
competitive short term insurance products. OUTsurance further
argued that the advertisement constitutes an anti-competitive act,
that the advert infringes its common law and intellectual property
rights, and that the advert contravenes the Financial Advisory and
Intermediary Services Act’s General Code of Conduct, the
South African Insurance Association’s Code of Conduct, and
the Advertising Regulatory Board’s (“ARB”) Codes
of Advertising. The matter was, however, dismissed by the Pretoria
High Court, after it was held that OUTsurance had failed to prove
the requisite level of urgency. As a result, OUTsurance was ordered
to pay the costs of the application. The advert will also continue
to feature across media platforms.

This article is limited to the regulation of advertising,
specifically.

The ARB is a self-regulatory, membership-based entity which
makes decisions that guide both its members and broadcasters, in
practice.  The recent decision handed down by the Supreme
Court of Appeal in the matter of ARB & Others v Bliss
Brands
 confirms that while the ARB does not have
jurisdiction over non-members, it may still consider the
advertising and issue decisions relating to adverts created by
agencies and brands that do not belong to the industry body, for
the benefit of its members and broadcasters. This is important, as
the ARB’s decision will guide whether its members elect to
publish or broadcast a particular advertisement or not (based on
its determination of whether it deems an advertisement as being
contrary to its Code).

While it is difficult to comment on OUTsurance’s specific
arguments without having had sight of the papers, it is likely that
OUTsurance’s legal team would have referenced and relied on
the general principles contained in the ARB’s Code. One such
provision regulates truthful presentation.  Those who have
seen the advertisement will recall that the driver, after seeing
the Hippo’s smartphone, refers to the fact that she could
have saved R 300 on her existing insurance quote. In terms of the
ARB’s Code, Hippo should have had credible documentary
evidence at hand to support this claim before the advert was
published.  It is insinuated that the Hippo mascot has all the
“receipts” necessary to back the claim, saved on his
trusty smartphone.  The other relevant principles contained in
the ARB’s Code include the rules governing price comparisons,
disparagement, comparative advertising and imitation.

Hippo will, no doubt, in any response filed in due course, argue
that this advert, which pokes fun at OUTsurance, was created as a
parody. The ARB Code specifically allows for “harmless
parody”, if the parody is intended to catch the eye or to
amuse. The advertiser must, however, be able to show that the
advert is seen as clearly humorous or hyperbolic and is not likely
to be understood as making literal claims for the advertised
product.

The ARB Code also includes a general prohibition on the
exploitation of advertising goodwill, prohibiting advertisements
which take advantage of the advertising goodwill relating to a
trade name or symbol of the product or service of another, or the
advertising goodwill relating to another party’s advertising
campaign or advertising property, unless prior written permission
has been obtained. Parodies, however, are specifically excluded
from the general prohibition, provided that the intention of the
parody is primarily to amuse, and which is not likely to adversely
affect the advertising goodwill of another advertiser to a material
extent. In these cases, the ARB would consider factors such as the
likelihood of confusion, deception and the diminution of
advertising goodwill. It will be interesting to see whether
OUTsurance could substantiate an argument that it has acquired
advertising goodwill in the concept of having a discussion with a
driver in a moving car relating to car insurance, which Hippo has
possibly exploited.

At this stage, it seems as though OUTsurance has only approached
the High Court for relief (likely in the pursuit of an interdict on
the basis of unlawful competition). Without having had sight of the
papers in the urgent matter, however, it is difficult to comment on
the evidence led by OUTsurance. It would be interesting to see how
muddy the waters get, if OUTsurance decides to bring a fresh
application before the normal motion court or, alternatively, the
ARB.

It remains to be seen whether Hippo may one day find itself in
deep waters, and in the writers’ opinion, much will turn on
whether this advert qualifies as a parody.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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