There was recently a case in the Eastern Cape High Court that demonstrates so simply what passing off is really all about. The case involved one product that all proud South Africans buy on a fairly regular basis, namely braai salt. The one party is Swartkops Sea Salt (Pty) Ltd, the wholesaler who has been selling the well known MARINA braai sout (that comes in an orange plastic container with a brown cap) since the 1950’s. The second party is Cerebos Limited, a competitor of Swartkops, who started selling its BUFFALO braai sout (also in a very similar orange container having a brown cap) at the end of 2010.
In 2011, Swartkops applied to the Eastern Cape High Court for an interdict to stop Cerebos from selling the above braai salt because it claimed that Cerebos was passing-off the get up of its braai salt. To succeed with the passing-off case, Swartkops had to prove:
- That its get-up has a reputation in that the public associates the elements of the get-up exclusively with Swartkop’s products.
- That the get-up of the Buffalo product is likely to confuse or mislead the public into believing that it is Swartkop’s product or somehow associated with Swartkops.
The court in the first instance found that, although Swartkops could prove the required reputation, it failed to prove a likelihood of confusion or deception. In the recent appeal, this decision was overturned and Swartkops was granted the interdict.
The appeal judge commented on the first judgement:
“…the learned acting judge…embarked on a close scrutiny of the two containers and noted the differences and similarities between the two containers…In my view by adopting this approach the court a quo lost sight of the principles…as to what is likely to be the ordinary everyday buyer especially of commodities such as groceries, namely a person who has a general idea in his mind’s eye of what he is looking for, who, however, does not have an accurate representation of it, who will not have the advantage of seeing the two products side by side, who will not be alerted to single out similarities and differences between the products.”
The appeal judge emphasized that one should have regard to the get-up as a whole and the impression it would make on the average consumer. The appeal judge concluded that “there is an immediate and striking similarity between the packaging and get-up of the rival products in question”. He also added that the evidence of people who were actually confused, contributed to the conclusion that there was indeed a likelihood of deception and confusion.