Beiersdorf AG v Koni Multinational Brands (Pty) Limited (85102/2017) [2019] ZAGPJHC 10; 2019 (4) SA 553 (GJ); 2019 BIP 270 (GJ) (12 February 2019)

Beiersdorf AG v Koni Multinational Brands (Pty) Limited (85102/2017) [2019] ZAGPJHC 10; 2019 (4) SA 553 (GJ); 2019 BIP 270 (GJ) (12 February 2019)

The court found that the respondent's Connie shower gel get-up incorporated distinctive elements from the applicant's Nivea brand, including colour schemes, label shapes, and graphic features, which, when viewed collectively, were likely to cause confusion among consumers. The court held that the memory of past get-ups can persist in the marketplace and contribute to consumer associations, even if those features are no longer in current use. The use of similar get-up, despite differences in product names, was deemed sufficient to create a deceptive impression, especially given the strength and reputation of the Nivea brand. The court concluded that the respondent's conduct amounted to...

Citation
[2019] ZAGPJHC 10
Parties
Plaintiff: Beiersdorf AG; Respondent: Koni Multinational Brands (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 February 2019
Case Number
85102/2017
Procedural Posture
Civil Application / First Instance
Outcome
Application granted. The respondent is interdicted from passing off its products as those of the applicant and must remove the infringing get-up from all materials.
Judges
Fisher
Legal Topics
Passing Off, Trade Dress, Get Up Confusion, Unlawful Competition, Consumer Confusion
Intellectual Property Commercial and Corporate Passing Off Trade Dress Get Up Confusion Unlawful Competition Consumer Confusion

Case Brief

Summary, issues, holding and outcome

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Parties

Beiersdorf AG

Plaintiff

Koni Multinational Brands (Pty) Limited

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the respondent's use of a similar get-up for its Connie shower gel constitutes passing off of the applicant's Nivea brand.
  2. 2 Whether the use of discontinued elements of the applicant's get-up can still create confusion and amount to passing off.
  3. 3 Whether differences in product names are sufficient to avoid deception in the context of similar get-ups.

Ratio Decidendi

The court found that the respondent's Connie shower gel get-up incorporated distinctive elements from the applicant's Nivea brand, including colour schemes, label shapes, and graphic features, which, when viewed collectively, were likely to cause confusion among consumers. The court held that the memory of past get-ups can persist in the marketplace and contribute to consumer associations, even if those features are no longer in current use. The use of similar get-up, despite differences in product names, was deemed sufficient to create a deceptive impression, especially given the strength and reputation of the Nivea brand. The court concluded that the respondent's conduct amounted to...

Court Disposition

Application granted. The respondent is interdicted from passing off its products as those of the applicant and must remove the infringing get-up from all materials.

Orders

  • The respondent is interdicted from competing unlawfully with the applicant by passing off its products as being those of the applicant or as being associated with those of the applicant by using the Connie get-up pictured and marked 'X' or any similar get-up.
  • The respondent is directed to remove such get-up from all packaging, signage, printed material, websites, and social media platforms under its control.