Radio is undoubtedly the most accessible and affordable media and form of entertainment in South Africa.  Radio is everywhere around us, from homes, to offices, cars to doctors’ consulting rooms and it’s even accessible via the internet and satellite.

One important, although not necessarily crucial aspect, of radio advertising is the voice behind a campaign.  So, anyone can get the message across, we know that.  Some just get it across better than others.  At its best, it can reduce you to tears, sooth the toughest heartache or inspire a nation to greatness.  At its worst it can irritate you to such an extent that you switch channels....fast.

The voice of an advert may not necessarily be the most important element of an ad campaign, but it certainly contributes to determining whether or not a consumer likes an advert and often becomes an extension of the brand itself.  Many brand holders enlist the services of professional voice artists, whilst others opt for the home-grown, “authentic, in-house” voice.  Strangely enough, and speaking only from personal experience (and that of those around me), there would seem to be an inverse relationship between the quality of an advert and its recognition and/or success.   For the most part, slick, professional adverts go by unnoticed, it’s those brand owners that appear to do their own adverts that seem to grab our attention and stick in our minds. 

A whip around the office as to the most, dare I say, “memorable”, radio ads placed “Hi, I’m Lucy Hirsch” at the top of the pack with most interviewees admitting to changing stations after this opening line....quickly.  Only to be met with Darryl from Birchmore’s.  Flick channels again....meet the less irritating and slightly more entertaining Harold from Netflorist.  Then of course, somewhere, in the recesses of my mind, engrained forevermore is the “Morkels, your two year guarantee store” lady.  Come on, admit it, you remember them too.

Will we ever forget Etienne Lewis’ discussion of “genuine leather uppers”.  Haven’t heard it?  Count yourself lucky.  I find myself repeating the phrase, accent and all, at the most obscure times.  The result?  Despite cringing at the sound of his voice, Etienne Lewis is foremost in my mind when I think “genuine leather” furniture.

If your brand has an instantly recognisable voice, it is important to protect it and prevent other brand owners from either imitating or using the same voice to promote their products or services.  But how?  There would be no copyright to enforce, as this form of protection relates only to work reduced to a material form, written, drawn, etc. and of course a voice in itself is none of that.  Trade mark registration would also be a no-go, for although trade marks may take many creative forms, such as colours, patterns, sounds and smells, these need to be, and all are, capable of being represented graphically.  Sadly though, there is no clear way of reducing a particular voice to a graphic representation.  So where does that leave us? 

Perhaps the best form of protection and enforcement is the Advertising Standards Authority’s Code which provides for the protection of a party’s advertising goodwill.  The Code states that advertisements may not take advantage of the advertising goodwill relating to a trade name or symbol of any product or services of another, or, more importantly in this case, the advertising goodwill relating to another party’s advertising campaign or advertising property, without written permission.  The ASA, in considering whether or not one’s advertising goodwill has been exploited, will consider factors such as the likelihood of confusion, deception and the decrease in that party’s advertising goodwill.  In order to succeed on this basis, one would also have to show that the particular element, in this instance the voice, constitutes the “signature” of the product or service, that it is consistently used, expended throughout media and is prominent in the consumer’s mind.

In order to avoid possibly lengthy battles of this nature, where it is envisaged that a particular voice will become an extension of your brand, it is best to tie your voice artist to your rand contractually and in so doing, prevent them from doing any voice work for any other party, especially your competitors.  This may not come cheap, but it may well be cheaper than fighting before the ASA.

Julia Stephens

Director
Trade Mark Attorney
Email julias@kisch-ip.com
Tel +27 11 324 3117