International also bear the spiral logo with the words "Herbal Zone" beneath it. If this were a logo devised in
South Africa for South African packaging, why would it appear on the letterhead of the Malaysian company?
What is more, the home
Page 358 of [2017] 2 All SA 335 (SCA)
page of Herbal Zone International's website shows the spiral logo above the words "Herbal Zone" and says
that:
"Phyto Andro is Malaysia's leading natural health company. Established at 2003 and manufactured or Founder by
Herbal Zone International Sdn Bhd . . . "9
The website reveals that the spiral logo above the words "Herbal Zone" is affixed to a variety of products not
only Phyto Andro capsules. A visitor to the phytoandro.com website finds the same logo. Disturbingly it
contains a circular letter dated 1 February 2016 addressed to its customers announcing that Herbal Zone
International CC, giving the Cape Town address of Herbal Zone, "is no longer our distributor in South Africa"
and claims that Herbal Zone International Sdn Bhd is "a Malaysian company and brand established in 2004".
One encounters this letter because there is both a prominent reference in the heading of the home page to a
South African circular and a depiction of the South Africa flag on which in prominent letters appears
"WARNING!!". The signatory to that letter is Mr Shadi, the same person who signed the letter of June 2015
referred to in paragraph 16. He was already a director of Herbal Zone International in August 2008 when Mr
Herzallah became a director.
[27] All in all, in the absence of an express claim by Mr Herzallah to have designed the spiral logo and its depiction
together with the words "Herbal Zone", and some explanation of how this came about, it is impossible to
accept that it is a device that attaches to Herbal Zone as opposed to Herbal Zone International. When the
lack of clarity in regard to the provenance of the spiral logo is taken together with all the other curious
features to be found in the documents and the affidavits and the regular description of Herbal Zone as an
importer or distributor, I am unable to conclude that Herbal Zone has discharged the onus of showing that the
reputation in the unregistered mark "Phyto Andro" vests in it in this country.
[28] There are circumstances in which an importer and distributor of goods can acquire a reputation in them.
Webster and Page10 deals with this possibility in the following passage:
"An agent or distributor who merely sells, or imports and sells, goods manufactured by another without adding
anything to the mark or getup under which they are produced, does not thereby acquire any goodwill in the name or
getup; for those symbols thereby acquire a reputation as indicating that the goods emanate from the particular
manufacturing provenance and not that they were imported and/or distributed by that particular agent.
On the other hand, it is possible for a distributor so to market the goods which he distributes that the name or getup
under which they are sold acquires a reputation as indicating that they emanate from him: in which case the goodwill
adhering to that name or getup will vest in him . . . The enquiry as to which trade source the symbol has come to
indicate in the territory in question is in every case one of fact." (Footnotes omitted.)
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[29] In support of its contention that it had acquired a reputation in South Africa for Phyto Andro Herbal Zone
relied on the second part of this passage and its application in this Court in Etraction.11 Herbal Zone's failure
to establish on a balance of probabilities that it had added anything to the mark or getup under which the
capsules were produced to identify itself as the source of the goods and disturb the indications that the
manufacturing provenance lay with Herbal Zone International meant that this submission could not succeed.
Its evidence did not establish that the reputation attaching to the product was associated with it and not
Herbal Zone International.
[30] For those reasons, the appeal against the dismissal of Herbal Zone's claim based on passing off must fail.
Defamation
[31] The order granted by Bozalek J in respect of the alleged defamation read as follows:
"1
That the First to Fourth Respondents are interdicted and restrained from:
1.1
Stating to the Applicants' customers and/or the public in general (whether it be orally, in writing, in public
publications or in any other way) that the Applicants' PHYTO ANDRO Capsules For Him product are
counterfeit;
1.2
Stating to the Applicants' customers and/or the public in general that the Applicants' PHYTO ANDRO
Capsules For Him product are harmful to ones' health, or that patients have become sick as a result of
using the Applicants' PHYTO ANDRO Capsules For Him product, or statements to similar effect;
1.3
Stating to the Applicants' customers and/or the public in general that it is illegal or unlawful to sell and/or
distribute the Applicants' PHYTO ANDRO Capsules For Him product and threatening legal action against
such customers and/or the public in general for selling and/or distributing the Applicants' said product."
The inclusion of paragraph 1.2 in this order was plainly erroneous. It was based on a disputed affidavit by Ms
Tshite about the alleged incident in July 2015 referred to in paragraph 7, and Counsel rightly made no attempt
to defend it. The argument was therefore restricted to paragraphs 1.1 and 1.3. These were clearly framed
with the abovequoted advertisements in the Daily Sun and the circular to clients in mind.
[32] The argument surrounding defamation was that in the advertisements and the circular Infitech and Herbs Oils
had been accused of selling counterfeit products and that this conduct on their part was illegal. That, with its
overtones of possible criminality, was said to be defamatory of them and therefore to warrant the grant of an