Mr D’s disparaging advertisement that imitated Massmart’s MAKRO MOOD Campaign

The Directorate of the Advertising Regulatory Board (“ARB”) was recently called upon to adjudicate a competitor complaint filed by Massmart IP (Pty) Ltd against Mr Delivery (Pty) Ltd. Mr D’s advertisements in issue were posted on YouTube and broadcast on radio.

The radio commercial features a distinctive-sounding voice-over stating:

“Hmmm, what’s that? Black Friday specials shouting sweet nothings in your ear and making your wallet itch? And now you want to bulk up on micro savings and wrestle big crowds and stand in long lines?

You’re in a mood for doing things the hard way.

Another voice then interjects: Woah woah woah woah, that’s D’Lulu. The S’Lulu is Mr D. Get the most deals on food, groceries, shops and more, delivered e’rry day this November when you shop D’Lulu days on Mr D. Mr D, the D is for D’Lulu.”

The YouTube advertisement (which does not feature a voice-over, only music and on-screen text) starts by asking the viewer, “In the mood for macro crowds?”, after which it reads “Didn’t think so.”

It then invites viewers to “Get D’most deals delivered to your door” and encourages them to download the Mr D app. Mr D’s “D’LULU DAYZ” logo also appears on-screen.

Massmart filed the complaint against Mr D’s radio advertisement on the basis that it contains and imitates a number of signature elements from Massmart’s MAKRO MOOD Campaign. Massmart’s MAKRO MOOD campaign had been extensively used in various media formats for over a year. The copied signature elements in the offending advertisement immediately and intentionally bring Massmart and its MAKRO MOOD Campaign to mind.

In particular, Mr D’s radio advertisement uses the identical voice over artist, speaking in the same voice, accent and speech cadence as those used in the MAKRO MOOD Campaign. Mr D’s advert also uses the recognisable “hmmm” at the beginning of its radio advertisement accompanied by a very similar backbeat and melody as that used in Massmart’s MAKRO MOOD Campaign. Mr D’s radio advertisement also talks about being in a “mood”.

In addition, Massmart argued that references to “macro crowds” in the advertisement posted on YouTube and to “bulk up on micro savings” in the advertisement broadcast on radio are clearly meant to disparage Makro. The radio commercial suggests that people who choose to visit Massmart’s physical stores should be prepared to “wrestle big crowds and stand in long lines” and in effect, do things the “hard way”. These statements are made with the sole intention of discrediting Massmart and dissuading customers from purchasing products from Makro, and to rather purchase them from Mr D. Massmart argued that Mr D employed this tactic in order to promote its own goods and services at the direct expense of Massmart.

Massmart pointed out that its goods are offered for sale in its physical stores, as well as online, on its dedicated website and through its MAKRO app. The insinuation that consumers should be prepared to “wrestle big crowds” and “stand in long lines” if they wish to purchase items from its Makro store, when they could actually purchase items online (for home delivery or collection) in direct competition with Mr D, is therefore dishonest and misleading.

Massmart’s complaint was therefore filed on the basis that Mr D’s adverts were contrary to the ARB’s advertising requirements relating to truthful presentation (clause 4), disparagement (clause 6), exploitation of advertising goodwill(clause 8) and imitation (clause 9) of the Code of Advertising Practice.

The ARB held that there was clear evidence that Mr D’s radio advertisement was deliberately created, and had gone ‘to some length’ to start and sound the same as Massmart’s MAKRO MOOD Campaign and then after the association has been made, it pivots, to deride the experience of shopping at Makro, encouraging listeners to rather shop with Mr D. The ARB Directorate accordingly found that the radio commercial imitates and disparages Massmart’s MAKRO MOOD Campaign.

With respect to the YouTube commercial, the Directorate found that Mr D’s advertisement agreed that Mr D’s choice of words, “In the mood for macro crowds?” may be a reference to Makro stores. This is because, ordinarily, one would refer to a “large crowd” rather than a “macro” crowd. However, it held that the subtle reference to a competitor is not always indicative of a contravention of the Code. It also held that Mr D has used this word within the appropriate context and meaning and that it cannot prevent other advertisers from using this word in its advertising, where nothing derogatory or negative is said about the competitor. The Directorate found that this advertisement was not in breach of the Code, although Massmart maintains that the use of “mood” and “macro” together still play into their MAKRO MOOD campaign.

From the above, it is clear that Mr D was in the mood for some unfair imitation and uncalled for disparagement.