Kogan goes hot pink after Spark legal threat

Ruslan Kogan. Photo / Michael Craig

Newcomer to the New Zeland market Kogan Mobile has mocked a legal letter from Spark - but also ultimately complied with it.

Kogan, which has been offering mobile service across the Tasman since 2015, launched here on September 3 - in a "mobile virtual network operator" partnership with Vodafone NZ that sees it selling a cut-price, rebadged version of the telco's service.

Just three days later, founder Ruslan Kogan says he received a letter from Spark noting that Kogan Mobile's NZ site was using bold white text on a vibrant orange background - which Spark said were brand attributes that its Skinny brand had used for more than half a decade. Several trademarks were registered around the Skinny brand, featuring orange and white.

"Notably, Kogan's Australian website does not deploy these prominent features," the letter said.

Spark claimed a "passing-off" breach of the Fair Trading Act (1986) and said it reserved its right to take legal action.

Ruslan Kogan described Spark's letter as "aggressive" but also took a tongue-in-cheek approach with his response which he shared with the Herald.

The AFR rich lister said he would change the orange-and-white sections of Kogan Mobile NZ's website to hot pink because he wanted to actively avoid being mistaken for his competitor.

"We really appreciate you looking out for us and ensuring that no customers may confuse our incredible offers for something lacklustre," he wrote.

He also said, "You say you've been using the same orange and white writing for 5 years. Really? C'mon, mix it up a bit. Live a little.

"We've also been using that colour (as well as many others) for many years across the ditch, and other telcos also use orange and white too!

"We expect our prices and the deals we offer Kiwis to speak much louder than any colours we use ... But, in any case, with pleasure we have replaced all orange on our site with hot pink. Check it out. What do you think?

"We love it when our competitors are spending time and money on the big things
that really matter. Please let us know if you don't like our choice of hot pink and we'll
happily change it."

Sebastien Aymeric, a lawyer with intellectual property specialists James & Wells (and independent from Spark and Kogan, told the Herald, "Skinny most likely has a strong reputation in the colour orange in relation to mobile services so it is not unreasonable for Spark to take such preventative measures to maintain that reputation."

Spark responds

Spark spokesman Andrew Pirie said, "Spark's legal team - on behalf of the Skinny brand- sent a letter to Kogan drawing their attention to a website advertisement which used Skinny's orange brand colour. The look and feel of this was extremely similar to Skinny's own marketing materials and to our knowledge Kogan does not use this orange colour in Australia in the same prominent way. Last evening, Kogan changed the colour so from Skinny's perspective the matter is sorted at this point."

No free riding

Aymeric says with the way it appears today, the Kogan Mobile NZ website is playing within the rules.

"Kogan does not appear to be in breach of Skinny's copyright; it does not appear to have copied Skinny's website when creating/developing its own: its website is designed differently, its layout is different, and the text and language it uses is different.

"Kogan is unlikely to be found in breach of the Fair Trading Act. Consumers accessing Kogan's website are not likely to be confused or deceived into thinking it is somehow associated with Skinny."

Beyond the colour scheme it's sporting today, the site, "is clearly branded KOGAN. Broadly speaking, Kogan is not trying to pass itself off as Skinny or free-ride on Skinny's reputation," the James & Wells lawyer says.

Below: slide between Skinny and Kogan's home pages as they stand today: