The Advertising Appeals Committee (AAC) has found that a Nedbank television commercial (TVC) imitated Allan Gray’s “Human value of time” concept, thereby breaching the Code of Advertising Practice.
The ruling reinforces the importance of originality in advertising, particularly among competitors within the same industry, and clarifies the boundaries between inspiration and imitation under the Code.
The appeal arose from a decision by the Advertising Regulatory Board (ARB) Directorate, which last year dismissed Allan Gray’s complaint against Nedbank’s advertising campaign.
Allan Gray lodged the complaint asserting that Nedbank’s campaign, particularly its TVC featuring the tagline “Time is more valuable than money. Spend it wisely”, infringed upon their long-standing “Human value of time” advertising concept.
In its ruling, the Directorate acknowledged that Allan Gray had built goodwill in its concept but concluded that Nedbank’s campaign was sufficiently distinct, dismissing the complaint.
Read: Allan Gray lodges complaint over ‘imitation’ Nedbank advert
Allan Gray escalated the matter to the AAC, seeking a reversal of the Directorate’s decision.
The asset manager contended that the Directorate erred by failing to recognise that Nedbank’s campaign exploited its established advertising goodwill associated with the “Human value of time” concept.
Allan Gray argued the Directorate’s analysis was flawed, because it focused on dissecting individual elements of Nedbank’s campaign – such as colour schemes and messaging – rather than assessing the overall similarity to its own advertisements. This piecemeal approach, Allan Gray claimed, overlooked the holistic impression created by Nedbank’s campaign, which it believed closely mirrored its own.
Additionally, Allan Gray asserted the Directorate placed undue emphasis on superficial differences instead of acknowledging the shared emotional narrative and visual style central to its advertising identity. Allan Gray argued this misstep allowed Nedbank to capitalise on its concept, potentially diluting its distinctiveness and effectiveness.
The AAC reviewed the case, focusing on the application of clauses 8 and 9 of the Code of Advertising Practice. The analysis addressed three questions: whether Allan Gray possessed advertising goodwill in the “Human value of time” concept, whether Nedbank’s campaign exploited that goodwill, and whether Nedbank’s TVC imitated Allan Gray’s concept.
The existence of advertising goodwill
The AAC assessed whether Allan Gray had established advertising goodwill in its “Human value of time” concept, a prerequisite for claims under both Clause 8 and Clause 9.
The AAC acknowledged that certain elements used by Allan Gray, such as the theme of time or emotive storytelling paired with dark colours and shadows, are not unique to its advertising and are widely employed across the financial services industry.
However, the AAC distinguished Allan Gray’s approach by highlighting the unique and consistent manner in which these elements were combined over an extended period. The Committee noted:
“What Allan Gray has done – and what has been consistent and unique in its advertising approach over many years – is that it combined these and other elements commonly used in advertising to tell human stories and evoke strong emotions and sought to tie those feelings back to its brand.”
This distinctive combination, refined over years of advertising, created what the AAC termed an “experiential association” with Allan Gray’s brand. Consumers could recognise an Allan Gray advertisement even without immediate branding, which typically appeared at the end of their commercials.
“It is within this experiential association with the concept that Allan Gray’s advertising goodwill lies.”
The AAC further supported this finding by pointing to Allan Gray’s extensive use of the concept. This consistency and distinctiveness elevated the “Human value of time” concept beyond a generic trope, establishing it as a protectable element of Allan Gray’s advertising identity.
Whether Nedbank’s campaign exploited Allan Gray’s goodwill
Next, the AAC evaluated whether Nedbank’s campaign, when considered in its entirety, exploited Allan Gray’s advertising goodwill under Clause 8. This holistic assessment encompassed Nedbank’s TVC alongside its supporting digital and social media content.
The AAC observed that although the TVC shared similarities with Allan Gray’s concept – such as emotive storytelling, cinematic use of shadows, and themes of time’s value – the broader campaign diverged significantly. This divergence stemmed from Nedbank’s explicit linkage of the time-value theme to its digital banking products.
Examples from Nedbank’s campaign included social media posts and website banners with messages such as “Save time with managing your money with Nedbank” and “Bank your time”, which directly tied the concept to its services. This clear branding and product focus distinguished Nedbank’s campaign from Allan Gray’s more abstract, brand-centric approach.
The AAC concluded: “On this basis, we find that Nedbank’s campaign, when considered in its entirety, does not take advantage of Allan Gray’s ‘Human value of time’ concept, is not likely to cause confusion, deception, or the diminution of advertising goodwill. Therefore, there is no contravention of Clause 8 of the Code.”
Whether Nedbank’s TVC imitated Allan Gray’s concept
The AAC then turned to Clause 9, which addresses imitation of specific advertisements rather than entire campaigns.
“Clause 9 of the Code, unlike Clause 8 of the Code, makes no mention of an advertising campaign. Rather, we must identify whether Nedbank’s advertisement copies Allan Gray’s advertisements, or part thereof, in a manner that is recognisable or clearly evokes the existing concept and which may result in the loss of Allan Gray’s advertising value.”
Allan Gray’s primary grievance centred on Nedbank’s TVC making it the focal point of this analysis. The AAC assessed whether the TVC replicated Allan Gray’s “Human value of time” concept, considering factors such as exposure, usage period, advertising spend, and the concept’s distinctiveness.
The Committee found that Nedbank’s TVC imitated Allan Gray’s concept to a discernible extent. It emphasised the competitive context, noting: “Nedbank and Allan Gray both operate in the financial services space, fighting for the same market share. If it were another brand in another category, they would not have the same issue.”
The TVC’s lack of product-specific references further aligned it with Allan Gray’s brand-promotion strategy.
“Whether one is targeting digital banking and the other is targeting investment in the financial services sector is irrelevant in circumstances where the TVC does not make any reference to the product at all but rather seeks to promote a brand and associate the concept with it.”
This mirrored Allan Gray’s approach, where branding typically concluded the advertisement, leaving the emotional narrative to dominate. The AAC underscored Allan Gray’s significant investment in the concept over 15 years, describing their advertisements as having “a distinctive thematic golden thread”.
The Committee’s remarked: “Were one to substitute Nedbank’s branding at the end of Nedbank’s TVC with Allan Gray’s, it would be almost completely indistinguishable from an advertisement that Allan Gray would typically create.”
The AAC characterised Nedbank’s actions as taking “a spade full of inspiration” from Allan Gray, a metaphor highlighting the substantial borrowing. Although direct evidence of advertising value loss was not required, the AAC pointed to viewer confusion – evidenced by calls to Allan Gray querying whether Nedbank’s TVC was its own – as suggesting a potential diminishment of Allan Gray’s advertising value.
The AAC upheld Allan Gray’s appeal, concluding that although Nedbank’s overall campaign did not contravene Clause 8, the TVC specifically violated Clause 9.
The Committee instructed ARB’s members are instructed not to accept the Nedbank’s TVC in its current form.
