Deceiving consumers with packaging or “get-ups”
Case: Beiersdorf AG v Koni Multinational Brands (Pty) Limited
What is your preferred shampoo brand? Your favourite coffee brand? Your most loved dairy brand?
Are you sure the last product you purchased is in fact that of your favourite brand?
The case of Beiersdorf AG v Koni Multinational Brands (Pty) Limited deals with these questions in that Beiersdorf AG, the owners of Nivea, applied to the Johannesburg High Court for an interdict against Koni Multinational Brands (Pty) Ltd, the owner of Connie and the company of the well renowned actress, model, producer and business woman, Connie Ferguson.
Beiersdorf AG contended that Koni Multinational Brands (Pty) Ltd deceived consumers with its Connie Body Care Men Active Shower Gel get-up, in that it is similar to that which is or was used by Nivea. The Court found in favour of Beiersdorf AG and ordered Koni Multinational Brands (Pty) Ltd to refrain from unlawfully competing with Beiersdorf AG by passing of its products as that of Beiersdorf AG and that all such get-up to this effect should be removed.
Interesting principles raised in the judgement include the following:
- The average consumer focuses on a general idea of what he or she wants when purchasing certain products, and not a precise and exact representation;
- Emphasis is placed on evidence of persons who have actually been deceived;
- It is not necessary to establish the intent to deceive on the part of the deceiver, but it is still relevant;
- The products forming part of the subject matter of the case are often bought as an “impulse buy”, which raises the chances of an error.
Compiled by: Lucas Theron ((B. Com Law, LL. B, Dipl. Fin. Plan); source: https://www.lexisnexis.co.za/
LEXISNEXIS MINI SUMMARY:
Intellectual Property :: passing off
Beiersdorf AG v Koni Multinational Brands (Pty) Limited JOL 41180 (GJ)
Case Number: 85102 / 2017
Judgment Date: 12 / 02 / 2019
Country: South Africa
Jurisdiction: High Court
Division: Gauteng, Johannesburg
Bench: RC Fisher J
Intellectual Property – Passing off – Average purchaser test
The parties in this matter each traded as suppliers of body care products and were competitors in the South African market for such products. as part of their range of products, each company supplied a shower gel for men. The applicant alleged that the respondent was passing off its “Connie Body Care Men Active Shower Gel” as being that of the applicant or being associated with that of the applicant. It was alleged that the respondent was making use of a get-up for the Connie shower gel which was likely to cause confusion in the market as to the source of the shower gel or as to its connection or relationship with the applicant. It sought to interdict the respondent from passing off its shower gel as being that of the applicant.
Held that in dealing with alleged passing off by imitation of get-up, it is assumed that the consumer is neither overly careful nor overly cautious, but “an average purchaser” who has a general idea in his mind’s eye of what he means to get but not an exact and accurate representation of it. He will also not necessarily have the advantage of seeing the two products side by side.
There can be no monopoly on get-up. But the moment a party copies, he must make it perfectly clear to the consumer that the articles which he is selling are not the other manufacturer’s, but his own articles, so that there is no probability of any ordinary purchaser being deceived.
The court was satisfied that the respondent was guilty of passing off its product as that of the applicant. An interdict was granted preventing the continuation of such conduct.