Viagra reaction cans agency's parody

By IRENE CHAPPLE

An Auckland advertising agency has been forced to cancel a marketing parody of the erectile dysfunction drug Viagra after squabbling with pharmaceutical giant Pfizer over whether the campaign was legal.

Nebula Marketing set up a healthcare division last year and promoted it with a campaign using the tagline "Niagra ... the proven marketing performance enhancer".

The theme continued through its promotional pamphlet as it asked: "Marketing strategy a bit limp and flaccid? Brand suffering from promotional dysfunction?"



Nebula managing director Andy McDowell said the campaign was telling, tongue-in-cheek, a good story to a niche market.

But when it was sent to Pfizer as part of a mailout to Nebula's pharmaceutical database, the drug giant was unimpressed.

It accepted an apology from Nebula, then insisted on publication of a further apology, destruction of the marketing material and an undertaking that no other such material would be distributed.

Mark Crotty, general manager of Pfizer NZ, said the company objected for two reasons.

The first was that erectile dysfunction was a serious issue and should not be ridiculed.

"There are enough jokes around it," he said.

The second was the "ripping off of our investment".

"It's about the investment we made in our brand - and [Nebula's] arrogance that they didn't realise that," said Crotty.

"We were prepared to go to the next step [legally]."

McDowell admitted that Nebula "borrowed a bit of equity", but said it was not passing itself off as Pfizer.

"Our legal advice has consistently been that we have not transgressed their rights."

Despite that, he said, a court case was not worth the effort.

Apologies have appeared over the past week in GP Weekly and NZ Doctor.

McDowell's lawyer, Simpson Grierson intellectual property partner Earl Gray, said the marketing did not breach the law.

The Trademarks Act is infringed if the trademarked symbol is used for an identical service or product. .

It is also infringed if the service or product is so similar it creates confusion or is misleading.

There is also a tort in common law called "passing off", which is breached if a product misleads the public into thinking use of its image or brand has been endorsed by its owner. The tort is reflected in the Fair Trading Act.

Essentially, these laws cover advertising parody.

Pfizer's lawyers say Nebula has been guilty of "passing off" the Viagra product.

"They are capitalising on the goodwill of our brand campaign."

But, said Gray, "it's Niagra rather than Viagra ... it's very different".

"And you can parody as long as there is no misrepresentation.

"If it is obvious you are taking the piss, there is no misrepresentation."

He said Pfizer was being overly sensitive.

"Often an attempt to get a level of exclusivity in the brands is not justified by New Zealand laws."

Nebula's "Niagra" product - marketing and advertising services - was very different to Viagra and could not be confused with the drug.

Gray also believed it was laughable to suggest the public might think the name had been endorsed by Viagra.

While the legal issues in this case were clear, he said, New Zealand case law had few examples involving advertising parody.

Those alleged to have breached were more likely to settle, as in this case, than take it to court.

The last parody case that caught nationwide attention was a T-shirt display at Te Papa.

The T-shirts, adorned with the logos The Whorehouse, F***'N Save and KKK were taken off display while The Warehouse, Pak'N Save and KFC took legal advice.

They were reported to have been disappointed, the T-shirts went back on display and Auckland artist Shigeyuki Kihara questioned whether the companies had senses of humour.

Parody is a well-used tool overseas.

Many countries also allow comparative advertising, a tactic that will be allowed in New Zealand under the new Trademarks Act, which should come into law by the end of the year.

A United States advertisement for Reebok this year took the mickey out of its competitor, Nike.

The campaign, aired on the Fox television channel and through the internet, starred Reebok character Terry Tate tackling the Nike streaker, who was the face of its new Shox shoe.

Nike was reportedly "flattered" by Reebok's response.

But advertising executive Howard Russell, of Strategic Insight, said parody could be a clunky tool.

"It depends on what you want to achieve and the nature of the relationship."

Clothing label FCUK, for example, worked well as a parody on the four-letter word.

It was successful because it targeted a young audience. They were able to rebel, but remain within society limits. After all, it was hard to argue against a T-shirt adorned with the letters FCUK.

"[Parody] is trying to to grab a bit of someone else's sunshine. But its success depends on the skill with which you do it and the effect it has on you," said Russell.

After all, as McDowell pointed out, "you can offend people - humour can be dangerous".