Frankie's

Frankie’s wins its soda rout with Woolies

In the David and Goliath battle that so dominated headlines late last year – Frankie’s Olde Soft Drink Company versus Woolworths – David has won again. The Advertising Standards Authority ruled yesterday that the retailer “deliberately and intentionally” copied Frankie’s “good olde-fashioned” branding on its vintage sodas and ordered that it may not sell drinks bearing the slogan “good olde-fashioned”.

In terms of the ruling, Woolworths must remove all packaging bearing the words “good old-fashioned”, within three months. The ban on the words also applies to all media, for example any advertising using this pay-off line.

“I have no doubt and evidence to prove Woolworths set out to intentionally copy our product. They plagiarised and we are glad the ASA found in our favour,”  Schmidt said.

“This is a clear warning to the big retailers. The South African public are not easily duped and are well informed,” he said of the support he had received from the public and on various social media platforms.

“We have won the battle, but not the war,” he added, also saying that he would be meeting Woolworths CEO Ian Moir to “discuss many important issues”.

According to a report on www.iol.co.za, it is believed there would be discussion around Schmidt’s assertions that the company not only stole its slogan, but that Woolworths’ entire vintage soda line – with its retro-shaped bottles, striped labelling and some identical flavours – was a copycat of the range he launched in 2006.

These issues were not raised in Schmidt’s complaint to the advertising authority, apparently for legally strategic reasons, but, if not resolved, could be the subject of a future court case.

Paula and Mike Schmidt, owners of Midlands cooldrink business, Frankie’s.

Woolworths said it was disappointed with the ruling, but would abide by it. “We will comply within the stipulated time frames,” said Moir.

“While we maintain that we have not copied the Frankies’s range, it is clear that public sentiment is against us. Customer opinion is much more important to us than the right or wrong of this issue, and the trust of our customers is far more valuable.

“We genuinely believed that the phase ‘good old-fashioned’ was descriptive and could be used across a range of vintage-styled products. Vintage products remain a global trend,” he said.

This was essentially the argument that the company submitted in response to Frankies’s complaint that it was a case of willful copying.

The advertising authority, in its ruling, said there was hardly any evidence to support Woolworths’ argument that the term “old-fashioned” was widely used in relation to sodas internationally.

The directorate said that – while Woolworths had submitted confidential minutes of a presentation meeting with its supplier, Chill Beverages, and a confidential design concept brief it prepared in June last year – neither of which made mention of Frankie’s – these documents did not explain where or how it came up with idea to use the phrase “good old-fashioned”.

“What is clear, is that on April 15, 2011, Frankies’s attorney wrote to Woolworths’ supplier indicating that it believed the phrase to be its advertising property. In the light of this, the only reasonable conclusion to be drawn… is that Woolworths deliberately and intentionally copied the phrase from Frankie’s advertising,” it said.

Woolworths has been operating in South Africa since 1931 and trades in more than 400 stores across Africa and the Middle East. In the 2010/2011 financial year its food operations alone had a turnover of R13-billion. Frankie’s opened in 2006 when Schmidt started to drive 100-litres of soft drink around KwaZulu-Natal each week. It’s grown since, with R18-million in turnover.

Read the ASA ruling here

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