Which case won?

casea
The case for the Alcohol Policy Coalition
  • Recent research shows that 55% of the audience of The Simpsons is under drinking age (18).
  • An alcoholic product that is branded in the get-up of The Simpsons’ Duff Beer will be instantly recognisable and highly appealing to children and young people under the legal drinking age.
  • The product will appeal to children regardless of whether or not it is overtly promoted in conjunction with The Simpsons cartoon or characters.
  • The advertisements for Duff Beer are therefore in breach of the Code.
caseb
The case for Woolworths
  • The Code does not apply to the packaging of products which were in production prior to 31 October 2009. The “Duff Beer” brand was launched and promoted in 1995 by two other companies, Lion Nathan and South Australian Brewing Company, so our product could not in itself be in breach of the Code.
  • All of the product’s marketing simply depicted the beer in a can. There was no depiction of anyone consuming the beer, or of it being in any environment outside the photo of the product itself.
  • Other than on the packaging of the beer itself, the words “The Simpsons” or any character from The Simpsons are not being used in any of our marketing.
  • The product would be attractive only to adult and long-term fans of the show, who would understand the Duff Beer connection.

So, which case won?

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Expert commentary on the court's decision

Nathan LukeManaging Director
“The panel’s conclusion was that the strong association of Duff Beer with The Simpsons in Australian popular culture meant that even if the product was marketed without reference to The Simpsons characters or images, it would still have strong appeal to underage persons.”
ABAC upholds complaint on basis of product’s appeal to children

The ABAC Complaints Panel found that, regardless of any exceptions in the Code to the packaging rules, the advertising of the product, even when very restricted, was still unavoidably attractive to children, given that The Simpsons TV show had frequently featured Duff Beer in a series which ran over a 30-year period. (See ABAC Complaints Panel Final Determination No:37A/14.)

In reaching this decision, the panel drew upon the judgment in Twentieth Century Fox Film Corporation and Matt Groening Productions Inc v the South Australian Brewing Co Ltd and Lion Nathan Australia Pty Ltd [1996] FCA 1484, where the court’s decision was based on the close association of the product name and packaging with The Simpsons.

In that case, Matt Groening had argued that a product launched by Lion Nathan and South Australian Brewing Company had infringed the intellectual property in The Simpsons brand by using it without licence. In the course of that trial, Mr Groening had given evidence that a real Duff Beer “might encourage children to drink alcohol”.

The panel’s conclusion was that the strong association of Duff Beer with The Simpsons in Australian popular culture meant that even if the product was marketed without reference to The Simpsons characters or images, it would still have strong appeal to underage persons.

Products supplied for bona fide retail sale before 31 October 2009

Woolworths argued that its beer should be treated as an exception to the Code, which states that the rules regarding the naming and packaging of alcoholic beverages do not apply to a product which has been supplied for bona fide retail sale prior to 31 October 2009.

In making this claim, the company referred to the “Duff Beer” brand which was launched and promoted in 1995 by Lion Nathan and South Australian Brewing Company without authorisation by the intellectual property owners of The Simpsons.

However, the ABAC panel took the view that the previous use of the “Duff” name by unrelated parties on an unrelated product did not amount to a bona fide retail sale within the meaning of that phrase in the Code.

“Others could fill the vacuum”

Woolworths also argued that as a signatory to the Code, it had “mature, balanced and responsible” measures in place to ensure that its products were sold responsibly and that there was no breach of the Code.

The company claimed that if it was forced to withdraw its genuine and licensed product from the market, other vendors which were not as responsible as Woolworths and not Code signatories could launch unauthorised products under the Duff name and “fill the vacuum”.

However, the panel rejected this argument also, taking the view that it would be unacceptable to decide a complaint under the Code on the basis of what unrelated third parties may or may not do in future.

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