South African market. If that is correct it militates against there being confusion in the market place even
among relatively unsophisticated consumers, and consumers of super maize meal are by no means all
unsophisticated. However, many of them are of limited means and are, accordingly, careful about how they
spend their money especially on a staple element of their diet. They are more likely to take added care to
ensure that they purchase the product they know and like.
[25] Nor does it lie in Pioneer's mouth to claim that the two products are essentially the same and that consumers
cannot tell the difference between them. It chose to annex to its founding affidavit marketing material in
which it claimed that WHITE STAR is easy to cook, keeps the eater feeling full for longer without being heavy
or forming lumps, and is always soft and fluffy. A brand survey published in a widely published newspaper, on
which it relied, claimed that consumers preferred its product because of its colour, texture, quality and flavour.
The most important factor in selling maize meal was said to be its taste. WHITE STAR has been marketed by
Pioneer as being of unrivalled quality according to the founding affidavit and the brand surveys on which it
placed reliance to establish its reputation. I can see no reason why it should not be held to those claims and
to their logical corollary that consumers will be able to detect if they are eating something other than their
preferred brand and, if this occurs as a result of misrepresentation, some at least of them, are likely to take
this up with their retail supplier. If that occurred I have little doubt that this would filter back to Pioneer
through its sales representatives.
[26] In these situations, it is commonplace for parties who fear that passing off is taking place to send agents to
suppliers to make test purchases and see if they can detect cases of confusion. That was not, so far as we
are aware, done in this case. Another method for detecting confusion is to undertake properly constructed
consumer surveys. Again that has not been done. Nor, although Pioneer complained that STAR was making
inroads into its markets in KwaZuluNatal and the Eastern Cape, was any information forthcoming about the
basis for these claims or investigations undertaken to ascertain why this was happening. The end result is
that there is a complete absence of any evidence that in some 10 years of competitive trading (8 if one takes
the 2003 date as being the relevant one) incidents of confusion have occurred. That strongly reinforces my
impression from an examination of the different getups as they appear on the packaging of these products
that they are not confusingly similar.
[27] In the circumstances, the court below was correct to hold that Pioneer failed to make out a case of passing off
and in dismissing the application
Page 294 of [2014] 2 All SA 282 (SCA)
for an interdict. The appeal is dismissed with costs, such costs to include those consequent upon the
employment of two Counsel.
(Navsa, Willis JJA, Swain and Mocumie AJJA concurred in the judgment of Wallis JA.)
For the appellant:
AR SholtoDouglas SC and BJ Vaughan instructed by Werksmans Attorneys, Stellenbosch and Webbers, Bloemfontein
For the respondent:
CE Puckrin SC and LG Kilmartin instructed by Adams & Adams, Pretoria and Honey Attorneys, Bloemfontein
Footnotes
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2
3
4
5
6
7
8
9
10
11
12
13
14
The photographs in the record reveal that this latter slogan has undergone some variation over the years. Initially it
included the words "Vitamin enriched" or "The First with Vitamin A" but in 2008/2009 it became "Move to the taste" or
"Move to the energy", with the reference to vitamin A being removed.
In an earlier iteration of the STAR package the colours of the printed words were the reverse of those described above.
Capital Estate and General Agencies (Pty) Ltd and others v Holiday Inns Inc and others 1977 (2) SA 916 (A) at 929BD
[also reported at [1977] 3 All SA 306 (A) Ed].
Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd and another 1998 (3) SA 938 (SCA) paras [13], [15]
and [16] (hereafter Caterham) [also reported at [1998] 3 All SA 175 (SCA) Ed].
Caterham para [22].
The packaging depicted in the record for the NALEDI product shows two rectangular blocks in red, above and below the
words NALEDI and STAR, containing in white block capital letters the description "Special Maize Meal". The picture
incorporated in this judgment shows, that was changed to 'Super Maize Meal' in green block capitals and the rectangular
block was removed. There is nothing in the papers concerning this change, although special maize meal and super
maize meal are by law different products.
Premier Trading Co (Pty) Ltd and another v Sporttopia (Pty) Ltd 2000 (3) SA 259 (SCA) at 266IJ and 267BC [also
reported at [1999] JOL 4947 (SCA) Ed].
The exercise is similar to that undertaken in respect of trademarks as described by Corbett JA in PlasconEvans Paints
Limited v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 640G641E [also reported at [1984] 2 All SA 366 (A)
Ed].
Premier Trading Co (Pty) Ltd and another v Sporttopia (Pty) Ltd, supra at 270H.
Reckitt & Colman SA (Pty) Ltd v SC Johnson and Son SA (Pty) Ltd 1993 (2) SA 307 (A) at 317C [also reported at [1993]
1 All SA 27 (A) Ed].
Online Lottery Services (Pty) Ltd and others v National Lotteries Board and others 2010 (5) SA 349 (SCA) para [37]
[also reported at [2009] 4 All SA 470 (SCA) Ed].
Century City Apartments Property Services CC and another v Century City Property Owners' Association 2010 (3) SA 1
(SCA) paras [13][15] [also reported at [2010] 2 All SA 409 (SCA) Ed].
Royal BeechNut (Pty) Ltd t/a Manhattan Confectioners v United Tobacco Co Ltd t/a Willards Foods 1992 (4) SA 118 (A)
at 126EF [also reported at [1992] 2 All SA 337 (A) Ed].
Greenblatt v Hirschon 1958 (4) SA 371 (A) at 376D [also reported at [1958] 4 All SA 304 (A) Ed].