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present packaging by dropping the mark "NALEDI" that had previously been a significant component of its
getup, and August 2003, when it added the strapline "THE PEOPLE'S CHOICE" to its packaging. I start there
because Counsel described the latter event as the straw that broke the camel's back, although it only sought
to take the issue up eight years later. Be that as it may, by that date Pioneer's sales of WHITE STAR were well
on track towards an annual tonnage of nearly 200 000 tons. Its marketing expenditure was nearly R7 million,
with over R10 million having been spent on marketing from the time of its launch. Advertising on the radio, a
major means of communication with the Black community for whom maize meal is part of their staple diet, was
extensive, totalling 37 advertising spots a week on 5 different channels, although one does not know to what
extent that advertising referred to the getup of the product. In the absence of rebuttal this appears to be
sufficient to establish the requisite reputation.
[10] At the earlier date in March 2001, the position is less clear. WHITE STAR had been launched in a market
dominated by two other major brands. Even so it had achieved sales of some 15 000 tons in 1999 and 65 000
tons in 2000. In 2001, its sales doubled again so one can infer that by March of that year something of the
order of 35 000 tons had been sold. In 2000, R3,5 million had been spent on marketing and advertising and a
similar amount was spent in 2001. It is plain that there was ongoing and successful marketing of the brand.
In 1999, WHITE STAR was also made available to consumers through demonstrations at various community
functions, such as church gatherings, choir festivals and elections, which attracted substantial numbers of
people.
[11] Bothaville Milling does not challenge this evidence and at various points in the opposing affidavit concedes in
general terms that Pioneer has established some reputation in WHITE STAR. However, it categorically denied
the existence of such a reputation at the time when it entered the market with its STAR product. That was in
2000, when the product was launched as NALEDI STAR. The packaging was similar to that depicted above,
save that above the star and mealie cob logo appeared the word NALEDI in lettering as prominent as the
word STAR below the logo. At that stage there could have been no possible claim that the getups of the
competing products were confusingly similar. The prominence of the word NALEDI was sufficient to prevent
confusion.
[12] In March 2001, the word NALEDI was removed from the pack, in order to avoid a dispute with a third party
that held a registered trade mark NALEDI together with a device mark. At the same time small changes were
made in the colouring of the words describing the product as well as the removal of the background against
which they were printed.6 In my
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view, the addition of the strapline in 2003 added little if anything to the appearance and impact of the STAR
product from the perspective of the consumer. If the two were confusingly similar then the scope for such
confusion existed from March 2001. The addition of the strapline could not have converted a getup that was
not confusingly similar to Pioneer's into one that was.
[13] The heads of argument on behalf of Bothaville Milling were confined to a submission that, because Pioneer
Foods launched its brand and adopted its getup in 1999, and before 2003 Bothaville Milling had been using
earlier variants on its own getup as finally established in 2003 "it is highly unlikely that the Appellant had any
repute or goodwill in its WHITE STAR getup at the time when the Respondent commenced use of its
packaging". This submission is somewhat flimsy in the face of the evidence summarised above and blurs the
sequence of events. It does not take account of the fact that until March 2001 the presence in bold type of
the word NALEDI would have served to distinguish the two getups. Nor does it take account of the limited
impact of the addition of the strapline in August 2003. By that date there is certainly some evidence of a
reputation in the WHITE STAR product and, if the later date of August 2003, is taken that evidence had grown
stronger. Although this is not the strongest case in terms of proving the existence of the necessary reputation
I accept for the purposes of this judgment that Pioneer established that it enjoyed the requisite reputation in
its getup at March 2001 and that this was the relevant first date for the purposes of its passingoff claim.
[14] The remaining issue between the parties is then whether Pioneer Foods established the second and third
requirements for passing off, namely misrepresentation and damage, by showing a reasonable likelihood that
members of the public may be confused by the getup adopted by Bothaville Milling for its STAR product into
thinking that it is WHITE STAR or is related to WHITE STAR.7 This is a matter for the judgment of the court but
in making it the court has regard to the type and class of customers who will buy super maize meal and the
circumstances in which such goods will be displayed for sale. The average customer is to be taken as
someone of average intelligence, eyesight, observation and recollection. The two products must be
considered not only as they would appear if sold side by side, but also on the basis of their being displayed
separately in separate premises. Allowance must be made for imperfect recollection on the part of the
consumer. What falls to be compared is not any single element of the getup or even each element
separately, but the overall impact of the entire getup of each on potential customers. In the case of a
product such as this, falling in the category of fast moving consumer goods, the matter is largely one of first
impression rather than lengthy examination, as customers buying such staple items will ordinarily be looking
for their "usual" brand as part of routine domestic shopping.8
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[15] Pioneer's case on the likelihood of confusion is expressed in the following way in the founding affidavit of Mr
Bower:
"The Respondent has embarked on a campaign of copying the applicant's WHITE STAR getup and performance