The Kiddos vs. Chickees Packaging Battle

An interesting matter dealing with children's food packaging was reported recently, where the underlying dispute overlaps beautifully with the world of Intellectual Property - in particular, the protection of packaging, get-up and advertising value.

Background

Rainbow Chicken owns the Chickees brand - a colourful, child-oriented range of crumbed chicken products sold across major SA retailers. After substantial marketing investment, the packaging has become distinctive and strongly associated with Rainbow.

Eskort, one of SA's oldest food brands, launched its Kiddos range of crumbed pork products. Rainbow complained to the Advertising Regulatory Board (“ARB”) that Kiddos had copied key crafted elements of the Chickees packaging and online advertising.

The Dispute

On 24 November, the ARB ruled in favour of Rainbow on the packaging complaint.

While not an “outright imitation”, the ARB found elements “simply too similar” to be coincidental - including the white punnet, distinctive coloured peel-off lids, and overall get-up that created a recognisable link to Chickees.

This, according to the ARB, was enough for a reasonable consumer to believe the two products might be related, potentially diluting the advertising value and distinctiveness of the Chickees brand.

However, Rainbow's complaint about Eskort's Instagram posts was not upheld. The ARB held that bright colours, playful fonts and animated elements are common stylistic devices in advertising aimed at children and not proprietary to any brand.

Why this matters for IP

This case is an excellent reminder that IP protection isn't limited to patents or trade marks.

In South Africa, packaging, get-up, advertising themes and overall presentation can be protected under the principles of unlawful competition - especially where a competitor gets “too close” in a way that may confuse consumers or dilute brand value.

The ARB emphasised that similarity in multiple crafted elements can amount to conscious copying, even where brand names differ.

The conclusion

Eskort now has a limited period to change its packaging unless it appeals. Rainbow welcomes the ruling, which reinforces the value of the goodwill built in the Chickees brand.

With only a handful of competitors in this niche category, this decision is a strong example of how brand identity and advertising investment can be protected in South Africa - and why companies should treat packaging design as an important form of IP.

Things are heating up and IT will be an interesting case to watch for anyone working with branding, packaging and consumer-facing IP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.