Shoprite Checkers (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd (12098/22) [2023] ZAWCHC 285 (17 November 2023)

Shoprite Checkers (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd (12098/22) [2023] ZAWCHC 285 (17 November 2023)

The court found that the applicant had established a substantial reputation and goodwill in the Forage and Feast range through extensive sales and marketing. The respondent's Crafted Collection range, despite some differences, incorporated strikingly similar elements in colour, font, packaging, and artistic layout, resulting in a high likelihood of confusion or deception among consumers. The respondent's benchmarking and imitation of the applicant's get-up were not coincidental but calculated, amounting to misrepresentation and passing off. The applicant demonstrated a clear right to protection, ongoing infringement, and absence of adequate alternative remedies. The court concluded that...

Citation
[2023] ZAWCHC 285
Parties
Applicant: Shoprite Checkers (Pty) Ltd; Respondent: Pick 'n Pay Retailers (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 November 2023
Case Number
12098/22
Procedural Posture
Urgent Application / Opposed Application for Final Interdict and Ancillary Relief Based on Common Law Passing Off.
Outcome
Application granted. The respondent is interdicted and restrained from passing off its Crafted Collection products as those of the applicant or as being connected in the course of trade with the applicant's Forage and Feast range. Ancillary relief and costs awarded to the applicant.
Judges
Goliath
Legal Topics
Passing Off, Get Up Infringement, Common Law Trademark, Interdictory Relief, Reputation and Goodwill
Commercial and Corporate Intellectual Property Passing Off Get Up Infringement Common Law Trademark Interdictory Relief Reputation and Goodwill

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 8 Authorities cited 18 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Shoprite Checkers (Pty) Ltd

Applicant

Pick 'n Pay Retailers (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Opposed Application for Final Interdict and Ancillary Relief Based on Common Law Passing Off.

Legal Issues

  1. 1 Whether the applicant has established a protectable reputation and goodwill in the get-up of its Forage and Feast product range.
  2. 2 Whether the respondent's Crafted Collection range constitutes passing off by creating confusion or deception among consumers.
  3. 3 Whether the similarities in get-up, colour, and packaging amount to intentional imitation and misrepresentation.

Ratio Decidendi

The court found that the applicant had established a substantial reputation and goodwill in the Forage and Feast range through extensive sales and marketing. The respondent's Crafted Collection range, despite some differences, incorporated strikingly similar elements in colour, font, packaging, and artistic layout, resulting in a high likelihood of confusion or deception among consumers. The respondent's benchmarking and imitation of the applicant's get-up were not coincidental but calculated, amounting to misrepresentation and passing off. The applicant demonstrated a clear right to protection, ongoing infringement, and absence of adequate alternative remedies. The court concluded that...

Court Disposition

Application granted. The respondent is interdicted and restrained from passing off its Crafted Collection products as those of the applicant or as being connected in the course of trade with the applicant's Forage and Feast range. Ancillary relief and costs awarded to the applicant.

Orders

  • The respondent is interdicted and restrained from passing off its Crafted Collection products as those of the applicant or as being connected in the course of trade with the applicant's Forage and Feast range by utilizing get-ups substantially as depicted in annexure 'JVA3' or any other confusingly or deceptively...
  • The respondent is ordered, in the presence of an authorized agent of the applicant, to destroy all printed materials, product packaging, and the like bearing the infringing get-ups under its control, or alternatively, to deliver up such materials to the applicant for destruction.