A week ago, Kogan Mobile launched in New Zealand. A couple of days later (on 6 September), Skinny complained that Kogan's use of the colour orange was a deliberate ploy to confuse the market.
Skinny is a budget brand of leading NZ telco Spark and a legal letter, signed by their (unnamed) "Legal Business Partner" was sent three days after the Kogan launch. In it, the company claims, "It seems clear that Kogan NZ Website reflects a deliberate design choice to adopt the brand attributes which consumers associate with Skinny in New Zealand."
Further, the letter states, "This is conduct which is likely to mislead and confuse consumers in the discount mobile market and may cause them to conclude that the respective mobile services are the same or have a commercial association.
"As a consequence, Spark [oddly, the letter references Spark, not Skinny here] considers that Kogan Mobile is in breach of section 9 of the Fair Trading Act 1986 and has committed the tort of passing off. By this letter, it formally puts Kogan and Vodafone on notice of this position."
The letter, labelled "private and confidential," makes a number of other points, but that is the essence of it.
In typical Kogan style, the response, written on 10 September was probably not what Skinny expected.
"Dear Spark (owner of Skinny),
"Kia ora neighbour! Thank you very much for your letter. Given that we haven't wasted any money on expensive ads, we really appreciate that you noticed that we've moved in. It's amazing how quickly word of an awesome deal spreads, isn't it?
"You say you've been using the same orange and white writing for five 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 have hundreds of thousands of customers in Australia, but we haven't been in New Zealand for long. We only launched last week but we expect to make a big bang.
"We expect our prices and the deals we offer Kiwis to speak much louder than any colours we use, and we doubt anyone could have confused our offer with yours. This is especially the case given the abundant Kogan branding everywhere on the customer journey. 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. But, if you are unhappy with us using the colour orange, you have to promise that you won't use our new hot pink ;-)"
"PS. We didn't use high paid lawyers to write a long response. We prefer to save a bit of money and pass those savings on to our customers.
"PPS. We believe in total transparency with our customers, so please bear that in mind when you write to us." Hence the earlier reference to 'private and confidential.'
Kogan has placed copies of both letters on DropBox.