red white and black, containing a representation of a baker and the name Bakers in prominent black letters. On
the right hand side, in light brown there is a representation of a scattering of Baker's Tennis biscuits, there
being more displayed on the larger than on the smaller pack. The weight is given at the left hand foot as 200
g, in gold letters on the smaller pack and in black on the larger. The word "Tennis" occupies centre stage in
Page 238 of [2001] 4 All SA 235 (A)
large red type. The letters are edged in gold. In both cases the word "Original" appears in much smaller golden
italics above "Tennis". Beneath that word appear in even smaller black print words indicating manufacture from
butter, coconut and golden syrup.
[7]
Turning to the "Tea Lovers" packet, it also has a baker logo on the top left hand side. It is much smaller than
the one on the Tennis packets, and because of its small size and muted colouring (white and brown bordered
in gold against a white background) its impact is slight. Within it appears
View Parallel Citation
the word "Kwality", which is much smaller than its prominent "Bakers" counterpart. There is a similar scatter of
biscuits on the right hand side. Their colour is the same as on the Tennis packet but, of course, they are not
stamped either as "Bakers" or as "Tennis". The weight of 200 g is given on the bottom right hand side in gold
letters against a small white inset. Above the words Tea Lovers appears the word "Quality" in gold italics,
similar in size and style to the "Original" on the Tennis biscuits. Below Tea Lovers are words in small black type
reading "Delicious, crisp coconut biscuits". The red letters, again prominent, and again gilt edged, in "Tea
Lovers" are about the same size as those on the shorter "Tennis" pack face. The same goes for the sides but
not the face of the longer "Tennis" pack. The red letters on the face of the longer pack (which has a wider face)
are slightly larger than the others. What differs between the two manufacturers is that the letters in "Tea
Lovers" are more widely spaced than those in "Tennis". What is strikingly similar is that the marks of both
manufacturers commence with an identically shaped red "T" and "e", gilt edged, against a lustrous white
background.
[8]
When one has regard to the whole getup, including the colours, the arrangements of matter and the letters,
there is an immediate and striking similarity between the rival packagings, whether one looks at the longer or
the shorter National Brands pack when making the comparison. That is so if you compare them side by side.
The same may be said if they are displayed in quantity on a supermarket shelf. Indeed when National Brands
sent one of their managers, Mr Pretorius, to inspect and take photographs of supermarket shelves where the
products were to be found in association, it was only after a time that he noticed that two Tennis packs had
migrated into the Tea Lovers shelf, and one Tea Lovers pack had done the opposite. When he had set this
right it was pointed out to him that he had overlooked a fourth pack which was also out of place. Being
supplied with photographs of the display, I can understand. The hypothetical buyer will frequently not have the
opportunity of making such a comparison, and as Tea Lovers are usually sold for less than Tennis biscuits, it is
particularly at this end of the market, where only the cheaper biscuits may be sold, that deception or confusion
may occur. But not only there, as this type of biscuits is popular among all classes and the danger exists even if
the two brands are displayed side by side.
[9]
It has often been said (eg in Pasquali at 476) that opinion evidence as to whether a particular packaging is
likely to deceive is of little value, as that is the very question which the court must decide. But as the
immediately succeeding passage in the judgment of Solomon J in Pasquali shows, evidence that persons have
actually been deceived is of far greater importance. National Brands has presented the evidence of one such
witness, Mrs Cassim.
Page 239 of [2001] 4 All SA 235 (A)
She was a regular purchaser of Bakers Tennis biscuits. On 3 August 1999 she took what she thought were
three packets of Tennis biscuits off a supermarket shelf and bought them. Back home she opened one packet.
The biscuits looked and tasted different and had a different texture. Only then did she look at the packet, to
see that what she had bought was Tea Lovers. At her husband's suggestion
View Parallel Citation
she telephoned Bakers. Efforts have been made to minimise the effect of this evidence. It has been suggested
that Mrs Cassim is not the average purchaser postulated by the law, but an abnormally careless one. This
despite the fact that she works as a qualified pharmacist, a profession peculiarly alert to correct product
identification. Then it is said, but she is only one! Where are all the others? The answer to this is that relatively
few persons will trouble to go back to the "innocent" manufacturer over such a small purchase. Much more
likely is it that they will go to the retailer to obtain satisfaction, or just learn for next time. Alone she may be,
but I accept that Mrs Cassim did in fact fall into a trap into which many a careful person may have fallen.
[10] A further factor in the case is that it is common cause that biscuits are sometimes the subject of impulse
buying. Blue Lion contends that this is a neutral factor. I do not agree. I consider that it enhances the chances
of error.
[11] Although innocent passing off is possible, I think Wessels CJ was right when in Policansky Bros Ltd v L & H
Policansky 1935 AD 89 at 98 he said:
"Here [in the field of passing off by adopting a getup] as a rule the element of dolus prevails, for the getup is