Smit & Van Wyk Patent, Trademark & Registered Designs

Passing Off: Marina vs. Buffalo

Intellectual Property Attorneys

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 emphasised 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.


Posted on 17 May 2013
Home / Blog / Passing Off: Marina vs. Buffalo

Patent Attorneys
It is highly recommended that your claims be written by a qualified patent attorney or patent agent. The patent attorneys at Smit & Van Wyk provide a wide range of patent-related services across multiple industries and fields of technologies, including patent drafting, filing and prosecution.

Mauritius Trademarks
Mauritius trademarks recognise the Nice Classification of goods and services, and allows for multi-class filing. Mauritius trademarks are valid for 10 years from the filing date and renewable for periods of 10 years each upon payment of the renewal fee.

Franchise Attorneys
Franchising legal advice is specialised and differs from other areas of law, thus you need find yourself an attorney that specialises in this specific type of law. Franchise attorneys represent the franchisor, as well as the franchisee. 

PCT National Phase Patents
The PCT National Phase is the second of the two main phases of the PCT procedure. It follows the international phase and consists in the processing of the international application before each Office of (or acting for a Contracting State) that has been designated in the international application.