Abstract
The dispute in Santam Limited v Dial Direct Limited and Joe Public (Pty) Ltd (unreported Western Cape High Court case number 13278/11), ended via a settlement, and judgment was given without any reasons being provided. Nevertheless, the facts raise a number of interesting questions, some of which are considered below. The facts were that Santam had a television advertisement produced (described in the court papers as “the Real McCoy” - available at http://www.youtube.com/watch?v=5JJWdpKATP0 (accessed 2011-12-10)). Sir Ben Kingsley is shown walking on the beach, talking about how consumers should discern between insurance companies, and in the end four look-alike men are shown. Dial Direct, a competitor of Santam, produced a commercial in response (available at http://www.alonberman.com/dial-directs-take-on-sanlams-ben-kingsley-ad (accessed 2011-12-10)). This commercial depicted an entity with a hand as the upper “body”, walking on a beach, saying “yada yada”’, and at the end four similar entities appear. The words “less yada yada, more ching ching” then appear on the screen. In the applicant’s founding affidavit the similarities were said to be, more in particular, that both advertisements had the same backdrop; the “persons” involved had the same dress style; the composition, grading and camera angles of the shots in the adverts are virtually identical; and similar music and lighting is used to create the same mood (par 24).