Of surrogates & brand extensions

The Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022, recently released by the Department of Consumer Affairs, stamped down very heavily on surrogate advertising by stating upfront that, “No surrogate advertisement or indirect advertisement shall be made for goods or services whose advertising is otherwise prohibited or restricted by law”. But the rules left the door wide open by also saying that, “ … mere use of a brand name or company name which may also be applied to goods, product or service whose advertising is prohibited or restricted shall not be considered to be surrogate”. Now what does that mean?

In simple consumer speak, it means that Kingfisher beer was (and still is) well within its rights to have a club soda called Kingfisher and advertise it; continue to publish its (in) famous Kingfisher calendar and promote it aggressively; and can again fly its Kingfisher airlines, provided the King of Good Times can find the money to do so — and advertise its “fly high” proposition without any adverse reactions. These “brand extensions” even under the new notification remain totally legal and legitimate. There is, of course, a different proviso in the law that states, “In-store availability (of the product) must be at least 10 per cent of that of the leading brand in the category that the product competes, or sales turnover must exceed Rs 5 crore per annum or Rs 1 crore per annum in each state it is distributed in”. With this little “yes, but …” breather in the notification, club soda may qualify, the calendar would not, and the airlines surely would. 

Wills, the cigarette brand, from the House of ITC, must have seen these provisions coming. So, Wills succeeded Benson & Hedges, who hosted the 1992 ICC Cricket World Cup, as the title sponsor of the 1996 version that was jointly hosted by India, Pakistan and Sri Lanka. Cigarette advertising was still not frowned upon in those days and Wills gained much visibility and stature through the title sponsorship. Can ITC theoretically still sponsor a Wills World Cup today? Not as an extension of the cigarette brand, but ITC could still do it. How?

Wills created a retail fashion brand Wills Lifestyle many years ago. One knows that till a couple of years ago, the retail brand had a chain of 350 stores across India — with an all India turnover far in excess of Rs 5 crore. Wills also has a range of men’s toiletries under the Essenza Di Wills Inizio brand name, which too would surely have a turnover in excess of the requisite minimum. Well, under the new guidelines, Wills could still be a title sponsor of a major sporting event using Wills Lifestyle or Essenza Di Wills, the cigarette connection notwithstanding. 

Or Wills could use a completely different route. Wills launched a campaign “Made for Each Other” (MFEO as it was popularly called) way back in 1965 for its Wills Navy Cut cigarette based on the claim that its filter and tobacco were perfectly matched. To leverage the campaign, ITC created many properties around it, the most famous being the Wills “Made for Each Other” contest to select a perfectly-matched couple every year. MFEO in those days was as celebrated as the beauty pageants of today. Tennis player and Davis Cupper, Premjit Lall and his first wife, were once the winners from Kolkata. Ex-Britannia managing director Sunil Alagh and wife Maya; and TV personalities Siddharth and Gita Kak were amongst the other celebrated winners. The contest was launched in 1969 and lived through the 70s, 80s and 90s till it was shuttered in 2004. The new notification would allow Wills MFEO to be born again as a Shark Tank-like TV contest provided it could notch up revenues in excess of Rs 5 crore, which would be pretty easy. And that could be an easy brand extension for Wills to use in any which way they may want.

This would also be the case with Godfrey Phillips’ Red & White National Bravery Awards, which were launched in 1990 when no cigarette or tobacco ban was even on the far horizon.  The “Red & White Peene Walon Ki Baat Hi Kuch Aur Hai” was an incredibly successful campaign for Red & White cigarettes and the bravery awards were a smart spin-off. Winners like Verghese Kurien of Amul and E Sreedharan of Delhi Metro gave the awards huge respectability and acceptability. I am not sure if these awards are still alive: They were subject to a lot of litigation. But under the new guidelines, Godfrey Phillips could rightfully stake a claim to an “independent” use of the brand name again. 

A Delhi High Court bench of Chief Justice K G Balakrishnan and Justice R V Raveendran in 2008 allowed liquor brand Royal Challenge to create the IPL Royal Challengers team despite deceptively similar names. The petitioner was told he had no locus standi in the matter — he was a mere consumer! 

The writer is managing director of Rediffusion