In a classic ‘David versus Goliath’ battle, KwaZulu-Natal Frankie’s Olde Soft Drink Company won against Woolworths when the luxury retailer was ordered by the Advertising Standards Authority (ASA) to withdraw the claim ‘Good Old Fashioned’, finding it to have been copied from Frankie’s.  The battle was originally waged on Social Media networks, with sentiment massively against Woolworths, to such an extent that the ASA ruling yesterday has led Woolworths to announce the withdrawal of its vintage soda range, an excellent victory for Frankie’s.

For the first time Woolworths, always priding itself on its quality of customer care, products and service, was on the receiving end of consumer power expressed via Social Media, with a Facebook ‘Petition to Woolies to stop faking Frankies’ page created with 911 ‘likers’, and hundreds of comments posted on the Woolworths Facebook page (with close to 150000 ‘likers’), urging Woolworths to withdraw the products and to admit that it had copied Frankie’s product concept.  A ‘Woolworse’ website was created, in reaction to the Woolworths Frankie’s battle, but the owner of the site felt that Frankie’s may itself have copied pack design, flavour names, as well as branding from international brands.  Woolworths was adamant until yesterday that it was ‘very clear that we did not copy other brands’, said its Managing Director for Foods Zyda Rylands.  Never has the retailer seen such a consumer backlash.

Yesterday Woolworths CEO Ian Moir posted on the company’s Facebook page the following statement after the ASA ruling was announced: “The Advertising Standards Authority (ASA) ruled today that we remove the phrase ‘Good Old Fashioned’ from the labels of our vintage soda range. We are disappointed by this decision as we believed that no one could own this descriptor. However, we have always been clear that we would abide by the ASA decision. Whilst we maintain that we have not copied the Frankie’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 to us than a product range. With this in mind, and despite only having been asked to remove the ‘Good Old Fashioned’ phrase from our labels, we have taken the decision to withdraw this product from our shelves. But mostly, I want to apologise for disappointing you, our customers”! The statement is far more consumer-orientated than its denials in the weeks leading up to the ASA ruling, and one would have thought that Woolworths would have a Communications department and a PR consultancy that could have guided it through this communication debacle.

The Frankie’s saga became public news in December when it was reported for the first time, and news of the Frankie’s versus Woolworths battle spread like wildfire on Social Media, mainly on Facebook and Twitter. Frankie’s is a small company started five years ago, and used the descriptor ‘Good Old Fashioned Soft Drinks’ from its inception. The company has only twelve employees and produces about 10000 litres of soda daily, reports Moneyweb.  It manufactures Homemade Ginger Beer, Olde Style Root Beer, Original Cream Soda, Cloudy Lemonade, and Cinnamon Cola.  Frankie’s owner Mike Schmidt communicated with Woolworths in May last year already, to alert the retailer that the slogan was that used by Frankie’s, yet Woolworths continued its use of the slogan.  Frankie’s therefore approached the ASA, lodging a complaint about the brand confusion which the Woolworths range was causing. Overnight Frankie’s achieved brand awareness and trial which it would never have been able to afford to buy via marketing!

The ASA stated in its ruling that it was not asked to make a finding about the copying of flavour names, labels, bottle shapes, or the ‘vintage’ flavour range, original complaints which Frankie’s expressed publicly. Despite being represented by well-known trademark attorneys Adams & Adams, who argued that claims ‘old fashioned’ and ‘good old fashioned’ do not exclusively belong to any trade mark owner, the Woolworths vintage soda range was found to contravene clause 9 of Section II of the Code of Advertising Practice relating to imitation, having ‘deliberately and intentionally copied the phrase’. Woolworths was instructed to withdraw its packaging immediately, but the Code does allow all companies facing an ASA ruling three months to complete the withdrawal of its packaging.  It may not be used again in its current format, the ASA dictated. Woolworths must also withdraw its communication of the product range across its full marketing communication range.

A meeting which has been scheduled between Frankie’s and Woolworths for 16 February now seems superfluous, given Woolworths’ announcement to withdraw its product range, which is what Frankie’s had been hoping for prior to yesterday’s ruling:“We are hoping Woolworths will do the right thing. The court of public opinion is clearly against them and I believe they now have the opportunity to recover from this by removing the product”. Before Woolworths announced its decision to withdraw its vintage soda range, Frankie’s media release welcomed the ASA ruling, adding “We have won the battle, but not the war”. Woolworths clearly listened to its opponent, and Frankie’s has emerged as the victor in a war that clearly went against Woolworths!  Frankie’s concluded that “Although this is undoubtedly a major victory for Frankie’s, it is also a victory for the small businesses who are scared to challenge the major retailers”.

Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com Twitter:@WhaleCottage