When does the word nasty mean something positive? The word nasty isn’t normally used to attract customers to buy food products but when ASDA used the phrase “no nasties guarantee” it provoked the European subsidiary of Japanese company Ajinomoto to launch a law suit against the Yorkshire based supermarket, claiming malicious falsehood.
But a Judge has ruled in favour of ASDA after being successfully defended by leading Leeds based intellectual property law firm Kempner Robinson. He also ruled that Ajinomoto should pay ASDA’s costs.
In 2007, ASDA announced its 9,000 own label food and soft drinks products would contain “No Nasties” which included artificial colours, preservatives, hydrogenated vegetable oils and aspartame.
ASDA also places the words “No Hidden Nasties” on the packaging of products in its own brand Good for You range of foods. The Japanese food giant produces aspartame and accused ASDA of “malicious falsehood” to defend the reputation of the ingredient which is used as a sweetener in a host of foods and soft drinks.
But, Mr Justice Tugendhat ruled that the term indicated that customers who felt that aspartame was bad for you or unpleasant could avoid it by purchasing those products so marked, but didn’t indicate that there was anything wrong with aspartame.
He also ruled that, for the first time, that the single meaning of terms such as ‘nasty’, applied when dealing with malicious falsehood as it does in defamation cases.
Stuart Jackson, the partner at Kempner Robinson running the case for ASDA, said: “This action should never have been brought, but the Judge has ruled resoundingly in our favour, and this is likely to be an end of the case.
“Ajinomoto alleged that the use by ASDA of the word “nasty” in referring to aspartame, as well as to artificial colours and flavours in foods and drinks, meant that ASDA thought that aspartame was harmful to health. This, Ajinomoto said, amounted to malicious falsehood.
“ASDA maintained that “nasty” was simply a shorthand term that recognised that there was a live controversy as to whether or not aspartame was harmful, and would be understood as such by those of its customers who preferred not to have aspartame in their food.”
The High Court Judge, Mr Justice Tugendhat, agreed with ASDA, and found in a trial on the point that the meaning of the words used on ASDA’s Good for You products was: “If you the customer think that aspartame may be bad for you or unpleasant to taste or consume, then this product is for you.”
Richard Kempner, partner at Kempner Robinson and relationship partner for ASDA, said: “Having been ASDA’s main external advisor on intellectual property matters for the last 15 years, we’re delighted to have clocked up another victory for them. Whilst, at last, it resolves one of the long unanswered questions in the law, it is also good for ASDA and its customers.
“What this means for consumers is that they can choose to avoid buying products without aspartame, and retailers can clearly label products that are free from aspartame.”
Stuart Jackson adds: “Ajinomoto may still appeal but the Judge made it clear that they would need to significantly change their case to have any chance of success.”