Spar Tops, Spar’s well-known liquor store chain, has landed itself in hot water recently as a result of their use of PJ Powers’ name in an advertising campaign.

As part of their campaign, which included print advertisements in a number of newspapers and in-store advertising, Spar Tops used the catchphrase “Grab a drink and show off those PJ POWERS”. This, they claim, was used as a play on words to refer to the Pyjama Party theme for the month of June which theme is linked to the message from their ‘Minister of Parties and Recreation’: 'No slumber, only party!'

However, PJ Powers, a recovering alcoholic, has understandably taken offence at and potentially been defamed by the unauthorised use of her name in an advertising campaign promoting alcohol.

It seems therefore that Spar Tops may have overstepped the mark.

The mere fact that a person has made a name famous does not entitle them to stop someone else from making use of the famous name in marketing their goods or services. On this basis, Spar Tops might have been within their rights to make use of the name PJ POWERS in their advertising campaign. However, the position changes when the use of the famous name defames any person or causes the likelihood of confusion as to the origin of the goods or services.

In this case, it is necessary to consider whether the use of the words “PJ POWERS” suggest a sponsorship or approval by Powers and, if we consider the public’s response on social media, it is apparent that some may have been misled into believing that Spar Tops was in fact endorsed by Powers.

A similar matter recently arose in the United Kingdom where Rihanna (the singer) took issue with Topshop’s unauthorised use of her image on t-shirts and succeeded in arguing before the courts that the sale by Topshop of t-shirts bearing her image amounted to passing-off.

South Africa has also had its own share of court judgments dealing with these issues, perhaps the most prominent being the matter between Basetsana Khumalo and Cycle Lab regarding the latter’s unauthorised use in an advertising campaign for their lady-specific cycle wear of a photograph of Khumalo shopping in one of their stores. In that case, the court held that the appropriation by Cycle Lab of Khumalo’s image by using her photograph in an advertisement cannot be justified on the basis that she is a public figure or celebrity.

PJ Powers’ agent, Yvonne Johnston, who has expressed her dissatisfaction with Spar Tops failure to apologise directly to Powers, confirmed in a radio interview with 567 Cape Talk on Wednesday morning that Powers would be lodging a complaint with the Advertising Standards Authority (“ASA”) in respect of the advertising campaign.

The ASA, which regulates advertising in South Africa, has strict provisions dealing with, amongst others, misleading claims, exploitation of advertising goodwill and protection of privacy and exploitation of the individual, which are likely to the grounds on which Powers would base her complaint.

The ASA’s guiding document, the Code of Advertising Practice (“the Code”), provides that advertising should not take advantage of the advertising goodwill relating to the trade name or symbol of another, unless prior written permission has been obtained. It is clear in this case that Powers did not give permission for the use of her name. However, there is an exception to this clause where parodies are concerned. That said, a parody must have the primary purpose of amusing (which is of course a subjective consideration) and the parody should not be likely to affect adversely the advertising goodwill of another to a material extent. In this case, it is apparent that the advertising goodwill associated with the PJ POWERS trade mark is being affected, arguably materially, by the association of her famous name with alcohol.

In addition, Clause 9.1 of Section II of the Code provides that advertisements should not portray or refer to, by whatever means, any living persons, unless their express prior permission has been obtained. This does not, however, apply to occasions when, in the ASA’s opinion, the reference or portrayal is not inconsistent with the person’s right to a reasonable degree of privacy and does not constitute an unjustifiable commercial exploitation of the individual’s fame or reputation. Given Powers’ celebrity status, there is an argument to be made that Spar Tops’ commercial exploitation of her fame or reputation, in a manner they will argue was meant to amuse, is justifiable. But Powers’ history of alcohol abuse and the arguable infringement of her rights of privacy, dignity and identity which has taken place will certain weigh against Spar Tops in this matter.

It will be interesting to see how the ASA weighs up the rights of Spar Tops and Powers in this matter. If their finding goes against Spar Tops, the ASA is empowered to order the withdrawal of the advertising in its current format and order Spar Tops to publish a summarised version of the ruling in all or some of the media in which the advertising complained of appeared.

*This article is merely to report, not to advise.

Written by John Foster, Senior Associate, Spoor & Fisher, Cape Town