Many of you will have seen Aldi’s new Christmas advert featuring Kevin the Carrot driving a bright orange truck through a snowy forest, past the homes of excited children waiting for Christmas. Most will have recognised the similarity to Coca Cola’s iconic Christmas advert showing Father Christmas driving a red truck through similar snowy landscapes. While some have thoroughly enjoyed the apparent spoof, national papers report that some have taken to Twitter to suggest that Aldi should be sued for breach of IP rights.
Presumably the proponents of such an action would have copyright infringement as their starting point under s16 of the Copyright, Designs and Patents Act 1988, which prohibits the copying of the work where the copyright owner has not licensed or authorised such copying. The Coca Cola advert was presumably commissioned by Coca Cola, and it presumably owns the copyright to it. It has presumably not authorised or provided Aldi with a licence to copy it. So far so good for the claim.
However, on looking a little further, Aldi may rely on s30A of the same Act which permits “fair dealing with a work for the purposes of caricature, parody or pastiche.” While the spirit of Aldi’s spoof would seem to fall squarely within s30A, Aldi must also successfully make the argument that the use is ‘fair dealing’. The statute does not give guidance on what counts as ‘fair dealing’, but in general, factors that may be taken into account include the amount of material reproduced, the motivation for such reproduction and the economic impact on the copyright holder.
At the far end of the spectrum, where 100% of a work is reproduced without authorisation and the sole motivation for doing so is to make a profit at the expense of the copyright holder, then this will unlikely be considered fair dealing. The current scenario would not appear to fall into that extreme situation, or anywhere near it, not least because there are clear differences between the two ads and because it is hard to see how Coca Cola would suffer economic loss as a result of Aldi’s advertisement.
The considerable differences between the ads means that Aldi is also unlikely to fall victim to a claim in passing off. To succeed in such a claim, there must have been misrepresentation on the part of Aldi which has led others to believe the goods advertised are actually those of Coca Cola’s and the Aldi ad would have to be confusingly similar enough to the Coca Cola ad so that such a claim would be credible. The Aldi ad could hardly be said to lead to such a mistaken belief, Kevin the Carrot being quite different to Father Christmas for a start, and the different brand names being clearly displayed in each ad.
It seems likely therefore that having cleared all the hurdles in IP claims that Coca Cola might seek to bring, Kevin the Carrot will live to see another day.