Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd
[2001] 4 All SA 235 (A)
Division:
Supreme Court of Appeal
Date:
18 May 2001
Case No:
286/2000
Before:
Harms, Schutz, Zulman, Cameron and Mthiyane JJA
Sourced by:
PR Cronje
Summarised by:
D Harris
Parallel Citation:
2001 (3) SA 884 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
[1] Competition Passing off Nature of Noone is allowed to pass off his goods as that of another person No
manufacturer is allowed to represent to the public that the goods which he sells are those of a rival manufacturer.
[2] Competition Passing off Noone is allowed to pass off his goods as that of another person No manufacturer is
allowed to represent to the public that the goods which he sells are those of a rival manufacturer Test Whether the
similarity is likely to cause deception or confusion on the part of the consumer.
[3] Passing off By imitation of presentation Enquiry is aimed at the average purchaser, who has a general idea of what
he intends to purchase, but not an exact and accurate representation of it.
Editor's Summary
At issue in the present case was whether the wrapping of one manufacturer's coconut biscuits passed itself off as
the wrapping of another manufacturer of similar biscuits.
Held The underlying principle in passing off is that noone is allowed to pass off his goods as that of another
person and no manufacturer is allowed to represent to the public that the goods which he sells are those of a rival
manufacturer. When considering a case concerning alleged passing off by imitation of presentation, the enquiry is
aimed at the average purchaser, who has a general idea of what he intends to purchase, but not an exact and
accurate representation of it.
As the law of passing off is not aimed at granting monopolies, a certain measure of copying is permissible.
The Respondent had been selling its biscuits since 1911. In 1998, the Appellant began selling its biscuits, which
were similar in presentation and wrapping as those of the Respondent. The Court described in detail the packaging
of each party's biscuits, and concluded that there was a striking similarity between the two packagings. The
Respondent led the evidence of a customer who had bought the Appellant's biscuits in error, having mistaken them
for those of the Respondent.
In response to the Respondent's charge that the Appellant was guilty of fraudulent intent in attempting to make
its product resemble that of the Respondent, the Appellant argued that fraud or intent were irrelevant to passing
off. The Court was not convinced of this argument. It was pointed out that the fact that a manufacturer tries to
imitate its rival's getup suggests that it believes that such imitation confers on it some advantage that an original
getup would not.
The Appellant pointed to certain distinctions between its own and the Appellant's packaging. However, the Court
found that the distinguishing words
Page 236 of [2001] 4 All SA 235 (A)
and marks were lacking in prominence. Moreover, the name of the Appellant's biscuits as it appeared on the
packaging seemed designed to cause confusion between its and the Respondent's product. The conclusion was
that the likelihood of deception and confusion had been established. The trial court was therefore correct, and the
appeal was dismissed.
Notes
For Competition see LAWSA Reissue (Vol 2, paras 376 408)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed. H N refers to
corresponding headnote number.)
South Africa
AdcockIngram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W)
Crossfield & Son Ltd v Crystallizers Ltd 1925 WLD 216