South Africa Case Law

Milestone Beverage CC and Others v The Scotch Whisky Association and Others (1037/2019)

Milestone Beverage CC and Others v The Scotch Whisky Association and Others (1037/2019) [2020] ZASCA 105; [2020] 4 All SA 335 (SCA); 2021 (2) SA 413 (SCA); 2020 BIP 505 (SCA); [2020] 2 CPLR 447 (SCA) (18 September 2020)

Court

Supreme Court of Appeal

Case number

1037/2019

Judges

Ponnan, Makgoka, Schippers, Sutherland, Poyo-Dlwati

The Supreme Court of Appeal held that the appellants' products, Royal Douglas and King Arthur, were marketed and presented in a manner likely to mislead the public into believing they were whisky or Scotch whisky, or had a Scottish origin, despite being vodka-based spirit aperitifs. The get-up, labelling, and use of Scottish indicia, including tartan patterns, crests, and evocative names, were calculated to create a false impression and unlawfully appropriate the reputation of genuine Scotch whisky. The products did not meet the statutory requirements for whisky under the Liquor Products Act,…

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• Unlawful Competition
• Trade Dress
• Misrepresentation
• Liquor Products Act
• Passing Off
• False Description

Beiersdorf AG v Koni Multinational Brands (Pty) Limited (85102/2017)

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)

Court

South Gauteng High Court, Johannesburg

Case number

85102/2017

Judge

Fisher

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 an…

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• Passing Off
• Trade Dress
• Get Up Confusion
• Unlawful Competition
• Consumer Confusion

Pioneer Foods (Pty) Limited v Bothaville Milling (Pty) Limited (215/2013)

Pioneer Foods (Pty) Limited v Bothaville Milling (Pty) Limited (215/2013) [2014] ZASCA 6; [2014] 2 All SA 282 (SCA); 2014 BIP 486 (SCA) (12 March 2014)

Court

Supreme Court of Appeal

Case number

215/2013

Judges

Navsa, Wallis, Willis, Swain, Mocumie

The Supreme Court of Appeal dismissed a passing-off claim over maize meal packaging, finding the STAR get-up not confusingly similar to WHITE STAR.

• Passing Off
• Trade Dress
• Likelihood Of Confusion
• Reputation
• Misrepresentation
• Damage

Weber-Stephen Products Company v Alrite Engineering (Pty) Ltd. and Others (201/91)

Weber-Stephen Products Company v Alrite Engineering (Pty) Ltd. and Others (201/91) [1992] ZASCA 2; 1992 (2) SA 489 (AD); (24 February 1992)

Court

Supreme Court of Appeal

Case number

201/91

Judges

CORBETT, EM GROSSKOPF, MILNE, GOLDSTONE, VAN DEN HEEVER

The court held that notices on the Mirage oven did not clearly distinguish it from the Weber grill, so the passing-off interdict was breached.

• Passing Off
• Get Up
• Trade Dress
• Deceptive Similarity
• Goodwill
• Distinguishing Features