Our interest is piqued by any media article reporting on an advertising campaign with “I smell lawsuits” in the comments.
So let’s unpack what cereal brand, Surreal, is doing with this latest campaign beyond getting heaps of free media exposure. In a nutshell, Surreal is finding everyday people with famous names and using them to endorse its products, like bus driver Dwayne Johnson and students Serena Williams, Ronaldo and Michael Jordan.
Is this a genius strategy by Surreal to get the benefits of A-list sponsorship without the seven-figure price tag or a shortcut to litigation?
First up, let’s look at the products that Surreal is selling – brekkie cereal in cute packaging in the following very kid-friendly flavours: Peanut Butter, Cocoa, Cinnamon and Frosted.
Dwayne Johnson can’t allege trade mark infringement unless he actually has registered trade marks for his brand name, which he doesn’t (in Australia at least). Cue our earlier article on the value of registering trade marks for your name if you’re famous not just for the potential tax advantages it may provide but also to give you greater control over your name and personal brand.
So, it’s safe to assume that Surreal isn’t going to be on the receiving end of trade mark infringement allegations for this campaign or at least not ones it needs to worry about. But are there any other legal claims it needs to be worried about?
Well, yes. IMHO this campaign is likely to fall foul of the prohibition against misleading and deceptive conduct in Australia. Yes, there is a big asterisk on the advertisement. And we can probably assume that the majority of adults knows that this means that they should pay attention to an accompanying foot note or annotation. Frosted cereal definitely isn’t targeted at adults so it probably doesn’t matter how adults interpret the ad.
Rather, the relevant question here is really how would a 10 year-old interpret this ad?
As the mum of nine and 11-year-olds, I can safely say that they are hitting peak fandom stage and are highly alert to what their idols endorse, particularly if it comes down to what they eat and wear. They also love frosted cereal product like no other age group. While they might be able to unpack this ad and work out what role the asterisk is playing, this is pretty unlikely to occur without some prompting from a nearby parent and after they had already probably popped a pack of cereal in the trolley in the supermarket.
There is a compelling argument to be made that these ads are targeted at a young demographic. We’re talking about celebrity (*) endorsed, frosted cereal products after all.
So Surreal, beware of rolling out this campaign in Australia. And all you famous people out there, register your personal brands and keep control of endorsement income.
