Y'ello Summer vs Yello' Hummer

MTN complained to the ASA that Nando's campaign was a rip-off of its "Y'ello Summer" campaign, which exploited its advertising goodwill.

Nando's has to withdraw its print advertisement, in-store promotional material and the radio commercial, according to a statement released by the ASA on December 19.

"Nando's has deliberately copied MTN's advertising in a manner that is unacceptable," the ASA statement read.

"The 'Yello' Hummer' advertising campaign is a clear imitation of MTN's ‘Y'ello Summer" past summer campaign. Nando's has copied everything from the wording, font, colour scheme and the design layout."

In terms of the code of advertising practice, an advertiser should not copy an existing advertisement in a way that may result in the likely loss of potential advertising value.

MTN complained that Nando's print advertisements copies various elements from the cellphone operator's campaign, including the use of the colour yellow, the term "Y'ello Summer", the registered trade mark "everywhere you go" and the same font.

Although Nando's argued that these advertising elements are not unique to MTN, that the two were not competitors, and that the ad was parody, the ASA ruled against the fast food chain.

The ASA directorate said: "[Nando's] used several elements from the complainant's advertising with little or no amendments. It combined the following elements to create an advertising campaign that, as a whole, looks strikingly similar to the complainant's advertising."

The ASA also decided that the radio advert also breached its rules.

Nando's' brief to its advertising agency showed an intention to copy MTN, the ASA said. The brief included: "We hear what resembles the MTN ‘Y'ello Summer jingle..."; "The girls mimic the MTN girls..."; "...do an advertisement for the promo in the style that has become synonymous with retail cell phone advertising".

The Nando's print ads advertised that the chicken outlet was giving away a yellow Hummer.

Nando's and its advertising agency Black River F.C. have cried "fowl" over the ruling, saying they would appeal the finding.

"We went to great lengths to provide the ASA with an extremely comprehensive response to the MTN complaint. We maintain that our argument is sound and that companies cannot monopolise generic statements like 'top up' or universal colours such as 'yellow'. We stand by our Yello' Hummer campaign and our response and we will take this case on appeal where we are confident that we will prevail," said Paul Appleton, marketing director for Nando's South Africa, in a statement.

Nando's argues that the Advertising Standards Authority code provides for parody, defined as "a composition in which the characteristic terms of thought and phrase of the author are mimicked and made to appear ridiculous especially by applying them to ludicrously inappropriate subjects."

Ahmed Tilly, creative director of Black River F.C., the agency responsible for the Yello' Hummer campaign, argues: "We created an independent and original ad for our client - we certainly did not copy any of MTN's advertisements."

Tilly believes that the complaint is "quite rich coming from a company who has not only relied on parody as a defence in proceedings before the ASA but who themselves have been judged guilty of copying competitors by the ASA committee.

Tilly was also surprised by the ASA's ruling that the Nando's Yello' Hummer campaign was not ‘overtly humorous or exaggerated.'

"Who defines humour and exaggeration in any event?"

Tilly says: "On instruction of the ASA we are removing the "offending" material from all Nando's restaurants. It will be replaced with a poster which carries an invite to MTN to enjoy our delicious flame grilled Peri-Peri chicken and enter our Hummer competition! Who knows, they might even win the Hummer!"

MTN, naturally, was pleased with the ruling. MTN spokesperson Ntombi Mhangwani, senior manager: Public Relations and Internal Communications says: "We are very pleased with the ASA ruling. We invest huge amounts of money annually on the MTN brand identity/image as well as our 'Y'ello Summer' campaign and feel that we have built up the MTN and 'Y'ello Summer' association over the years. We cannot therefore allow them to be diluted in any way."

MTN stopped using the "Y'ello Summer" pay-off line in April 2007.