Mars Inc v Advertising Standards Authority of South Africa and another 2000 (4) SA 511 (W) Smith v Kwanonqubela Town Council  4 All SA 331 (A); 1999 (4) SA 947 (A) View Parallel Citation Judgment NUGENT AJA:  The Advertising Standards Authority of South Africa (ASA) is a voluntary association that is incorporated in terms of section 21 of the Companies Act 61 of 1973. It was established by participants in the advertising industry with the objective of creating a system of selfregulation within the industry. For that purpose it devised a Code of Advertising Practice and Procedural Guide to which its members are obliged to adhere. A departure from the Code by any of its members may result in a complaint being made to the ASA which must be dealt with in accordance with the prescribed procedure. If there is merit in the complaint the ASA will rule accordingly and it may impose various sanctions upon the member concerned, the most important one being the withholding of advertising space or time.  According to the Code the directorate of the ASA has the primary responsibility for its application but it may refer a complaint to one or other of its committees. The Code provides specifically that all matters related to "industry disputes" and in particular matters raised in terms of clauses 7, 8 and 9 of Section II of the Code will be considered by the Advertising Properties Committee.  The parties to this appeal are both manufacturers of confectionery and sweets. Each of them manufactures a sweet variety that may best be described as a sugarcoated chocolate button. The respondent (Mars), which is incorporated in the United States, commenced manufacturing and selling Page 317 of  4 All SA 315 (A) its product in that country in 1954 under the name M&M's and it has since expanded its sales to other countries. The appellant (Nestlé) is a South African company which has sold its product for many years in this country under the name Smarties.  Soon after Mars commenced producing M&M's it created a graphic representation of its product with human features for use in its advertising material. Its sweet was depicted with arms, legs and a face so as to represent it as a little round man with the letter M depicted on his stomach. There is no dispute that this brand character in various forms has been extensively used by Mars in its advertising and promotional material for many years. The brand character has also been developed into a three dimensional model which serves as a dispenser of the sweets.  In 1993 Mars introduced its product into this country. It is alleged that at about that time Nestlé devised a plastic dispenser for Smarties which was also in the form of a little round man (ie it had the appearance of a Smarties sweet with arms, legs, a face, and other human attributes). According to Nestlé it then developed that concept further by translating the character into twodimensional form for use in its advertising and promotional material.  In June 1995 Mars applied to register four different versions of its brand character as trade marks in terms of the Trade Marks Act 194 of 1993. In December 1997 and again in January 1998 the applications were advertised in the Patent Journal and they came to the attention of View Parallel Citation Nestlé. Nestlé's Swiss principal sought and obtained from the Registrar of Trade Marks an extension of time within which to register opposition to the applications and further extensions were sought and granted thereafter. At the time that the present proceedings were commenced its opposition to the application for registration of the trade marks had not yet been filed.  In May 1998 a firm of advertising agents representing Mars lodged a complaint with the ASA and requested that it be referred to its Advertising Properties Committee. The complaint was against the use by Nestlé of its Smarties characters in its advertising and packaging. Although the complaint was more broadly framed its gravamen was that Nestlé had copied the Mars brand character in breach of clause 9.1 of the Code. At the time the complaint was made that clause read as follows: "An advertiser should not copy an existing advertisement, local or international, or any part thereof in a manner that is recognisable or clearly evokes the existing concept and which may result in the likely loss of potential advertising value. This will apply notwithstanding the fact that there is no likelihood of confusion or deception or that the existing concept has not been generally exposed."  It was the ASA's response to the complaint that led to the proceedings which are the subject of this appeal. On 17 September 1998 the ASA wrote to the parties in the following terms: "The subject matter of the complaint is firstly a matter to be determined by trademark law. The Courts, as the final instance, have a superseding jurisdiction over the subject matter of the complaint, and can therefore overrule the ASA's decision. In the opinion of the ASA Directorate the ASA is not the appropriate forum to consider a matter where trademark law should firstly be determined.