Frito-Lay India claimed competitor Uncle Chipps infringed their copyright in a “free discs in crisps” promotion. What were their legal advisers on?
Who: Frito-Lay India, Uncle Chipps Private Ltd and the High Court of Delhi
When: Late 2000
When Uncle Chipps crisps launched a promotion offering free "Amazzo" collectible discs in every pack, Pepsico snack company Frito-Lay India was not happy. They had previously offered "Tazzo" discs in each pack of "Lays" and "Cheetos" crisps. These could also be collected, so Frito Lay cried "foul" and issued proceedings for copyright infringement, passing off and unfair competition. They also invited the court to find Uncle Chipps liable for a new civil wrong they proposed be created, namely adoption of an advertising campaign which was too similar to that of a competitor.
The Court found against Frito-lay on all points. There could be no copyright in an idea for a promotion, the Court held, and such of the design elements as figured in both the Tazzo and Amazzo discs were too commonplace to be protectable by copyright. On passing off, "Tazzo" and "Amazzo" were phonetically distinguishable and even if they had been more similar, the brands were not seen until after opening packs under the entirely different Uncle Chipps and Cheetos/Lays names. Amongst the "urban elite," streetwise, English speaking kids who were the target market, therefore, confusion was unlikely.
As for copying advertising campaigns, the court rejected the idea that there could be rights in ad campaigns as such, and in any event this promotional idea dated back to the second world war, probably when the judges remembered collecting their own discs!
Why this matters:
This is not the first time that the idea of a special copyright for advertising campaigns has been mooted. The Max Plank institute of Geneva was around six years ago commissioned by German advertising agency trade bodies to research and report on the possibility of a new "advertising right." The resulting paper was positive about the concept, but perhaps this case from Delhi demonstrates why the idea has not taken hold.