Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd (203/90) [1991] ZASCA 181; 1993 (2) SA 307 (AD); [1993] 1 All SA 27 (A) (28 November 1991)

Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd (203/90) [1991] ZASCA 181; 1993 (2) SA 307 (AD); [1993] 1 All SA 27 (A) (28 November 1991)

The court found no reasonable likelihood of confusion or deception between Brasso and Brillo brass polish, as the respective containers were clearly marked with distinct trademarks and design elements. The similarities in container shape and colour were not sufficient to cause confusion, and the survey evidence presented by the appellant was flawed and unreliable. The appellant failed to prove that the respondent used the Brillo trade mark without the owner's assent, as evidence showed the respondent had permission to use the mark. The legend 'Working Hard 75 Years' was ambiguous but not objectively false or misleading, as it could reasonably refer to the Brillo brand's history rather...

Citation
[1991] ZASCA 181
Parties
Appellant: Reckitt & Colman SA (Pty) Ltd; Respondent: S C Johnson & Son SA (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 1991
Case Number
203/90
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application for Final Interdict
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Corbett, Nestadt, Vivier, Goldstone, Harms
Legal Topics
Passing Off, Trade Mark Infringement, False Advertising, Merchandise Marks Act, Trade Practices Act
Intellectual Property Commercial and Corporate Passing Off Trade Mark Infringement False Advertising Merchandise Marks Act Trade Practices Act

Case Brief

Summary, issues, holding and outcome

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Parties

Reckitt & Colman SA (Pty) Ltd

Appellant

S C Johnson & Son SA (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application for Final Interdict

Legal Issues

  1. 1 Whether the respondent's Brillo brass polish get-up constitutes passing off of the appellant's Brasso product.
  2. 2 Whether the respondent contravened sections 6 and 7 of the Merchandise Marks Act by using the Brillo trade mark without the owner's assent.
  3. 3 Whether the legend 'Working Hard 75 Years' on Brillo tins is false or misleading in contravention of section 9 of the Trade Practices Act.

Ratio Decidendi

The court found no reasonable likelihood of confusion or deception between Brasso and Brillo brass polish, as the respective containers were clearly marked with distinct trademarks and design elements. The similarities in container shape and colour were not sufficient to cause confusion, and the survey evidence presented by the appellant was flawed and unreliable. The appellant failed to prove that the respondent used the Brillo trade mark without the owner's assent, as evidence showed the respondent had permission to use the mark. The legend 'Working Hard 75 Years' was ambiguous but not objectively false or misleading, as it could reasonably refer to the Brillo brand's history rather...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs consequent upon the employment of two counsel.