We had a rare trademark 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 purchases. 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 products.’