We had a rare trade mark decision from the Eastern Cape High
Court recently. It was a full bench (appeal) decision and it dealt
with the issue of whether Cerebos had passed off its braai salt as
that of the company Swartkops Sea Salt.
Swartkops has been selling a braai salt (yellow in colour) for
many years in a particular get-up - an orange plastic
container with a brown cap, the brand name Marina in a white oval
with a blue trim appearing above the words 'Braai Salt',
and a picture of meat on a braai. When Cerebos brought out a braai
salt (also yellow in colour) in a get-up that was very much the
same - with the name Buffalo replacing the name Marina - Swartkops
sued for passing off.
The first court found that there was a sufficient reputation or
goodwill in the get-up of the Swartkops product to support a
passing off claim, but that there was no likelihood of
confusion. So no passing off! The full bench, however,
found that confusion was likely and that there was passing off. It
said that the fact that there had been two instances of actual
confusion was very relevant, pointing out that in the earlier
decision of Blue Lion v National Brands the appeal court said that
such evidence should not be discounted lightly, as few people can
even be bothered to complain about mistakes with small
The full bench adopted a different approach to the earlier court,
which had closely examined the differences in the get-ups before
deciding that there would be no confusion in the marketplace. The
full bench went for the general impression / imperfect recollection
approach and said this:
'The learned acting judge, having warned himself not to peer
too closely at the competing products, embarked on a close scrutiny
of the two containers and noted the differences and similarities
between the two containers. This examination runs into eleven
paragraphs of the judgment. Having done so the court drew the
conclusion that the respondent had sufficiently distinguished the
get-up of its product from that of the appellant and that there was
no prospect of confusion on the part of the ordinary consumer. In
my view by adopting this approach the court lost sight of the
principles laid down in Blue Lion 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
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