records tell another story. They are headed with MAJ's name above the words "South African Office
Expenses". The items reflected include salary for a Mr Shadi and rental of premises. They also reflect regular
payments, apparently by MAJ in subvention of these costs. The picture is of a branch office acting on behalf of
MAJ. If Mr Shadi is the same person who became a director of
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Herbal Zone International before Mr Harzallah and who is now the chief operating officer of that company, the
accounts show that part of his salary in dollars was being allocated to Etumax. Most importantly of all it shows
that the mark Phyto Andro was being used on the product at that time. That can only have been because it
was being used at source in Malaysia.
[19] The pamphlet that gave rise to the defamation claim had the name Herbal Zone International CC at the head
and referred to Herbal Zone International and an English entity at the foot. There are a number of letters in
the papers on the same letterhead as the pamphlet and a few that refer additionally to "Herbal Zone
International" in Dubai and to Herbal Zone International Ltd, a New Zealand company. An application
addressed to the Medicines Control Council described the applicant as Herbal Zone International CC. It was
said that this was an oversight and that these references were intended to be references to Herbal Zone, but
the use of that letterhead and description extended from at least 2012 through to the commencement of
these proceedings. Over such a protracted period it could not have been inadvertent and no other
explanation was proffered.
[20] The confusion manifests itself elsewhere. In internal emails Mr Herzallah inserted his name above the words
"Herbal Zone International, Cape Town South Africa". The website of the business referred simply to "Herbal
Zone" without identifying either the Malaysian or the South African entity. The website addresses were
equally unspecific referring either to "herbalzone.com" or "herbalzone.net" or "phytoandro.com". This was all
consistent with the business of Herbal Zone being conducted in a manner that blurred the distinction between
the local and the Malaysian entity. Infitech contended that the confusion was deliberate.
[21] Mr Herzallah said Herbal Zone International was formed to take over the manufacture of Phyto Andro
capsules. However, it appeared that Herbal Zone International did not itself have a manufacturing facility but
contracted with others to manufacture on its behalf. The registration certificate issued by the Drug Control
Authority (Ministry of Health, Malaysia) for the manufacture of Phyto Andro for Him capsules was issued to
Herbal Zone International but the actual manufacture was being undertaken by an entity called Polens (M)
Sdn Bhd.7 The certificate authorised the holder to endorse the packaging in which the product was sold with
a stamp in a roundel containing the letters GMP, which stands for "good manufacturing practice" and is a
requirement for the manufacture of this type of product in Malaysia.
[22] The Islamic Food Research Centre, Hong Kong, Malaysia, issued a similar certificate, stating that the product
was Halaal and complied with Shariah law, so that it was lawful for consumption by Muslims. This too was
issued to Herbal Zone International, but in respect of the manufacturing facility of Polens (M) Sdn Bhd. It
authorised the holder to
Page 357 of [2017] 2 All SA 335 (SCA)
endorse the packaging of the product with a roundel reflecting that the Islamic Food Research Centre had
certified it as Halaal.
[23] The packaging of Phyto Andro for Him identified Herbal Zone International as the manufacturer of the product.
Both the GMP and Halaal certification obtained by Herbal Zone International appeared on the exterior of the
box and on each foil package containing a capsule. There was no indication on the external package that it
had any direct South African connection, much less a connection with Herbal Zone. The product information on
the side of the box said that it was a product used "internationally". The only connection with Herbal Zone
was that its name, fax number, email address and the words "Cape Town South Africa" were printed on the
foil sachet in which the capsule was sold. But that was packed in a box that identified Herbal Zone
International as the manufacturer. Inasmuch as the purpose of a trademark is to serve as a badge of origin 8
virtually all the information available to a person purchasing the product, whether for resale or use, pointed to
the origin being Herbal Zone International.
[24] I appreciate that a trademark's function as a badge of origin does not require that the mark should identify
the corporate entity that is the proprietor of the mark or, in the case of an unregistered mark, the entity in
which the reputation attaching to that mark is vested. Nonetheless, when the public material associated with
the product and the mark points to a particular entity as the manufacturer of the product, the ordinary
inference by consumers will be that this is in fact the origin or source of the product. Where large corporate
groups consolidate all their intellectual property rights in a single subsidiary that is done by way of formal
agreements such as assignments of rights a situation that is not present here.
[25] In an endeavour to circumvent these difficulties Counsel drew our attention to a passage in Mr Herzallah's
affidavit where he said:
"From as early as this all Phyto Andro capsules were sold in packaging which bore the name 'Phyto Andro' affixed to it
boldly the logo of Herbal Zone to identify the association between Phyto Andro and Herbal Zone."
In the light of an earlier statement in the affidavit that when referring to Herbal Zone he was referring to the
South African close corporation, we were asked to infer from this that Herbal Zone had devised and caused to
be affixed to the packaging the spiral shaped device logo appearing there above the words "Herbal Zone"
and that this created the association between Herbal Zone and Phyto Andro.
[26] I am unable to draw that conclusion. An immediate difficulty is that documents emanating from Herbal Zone