". . . the plaintiff has, in a practical and business sense, a sufficient reputation amongst a substantial number of persons
who are either clients or potential clients of his business" (Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
and another 1998 (3) SA 938 (SCA) at 950).
What is required of a plaintiff was explained by Harms JA, quoting from Reckitt & Colman Products Ltd v Borden Inc
and others [1990] RPC 341 (HL) ([1990] 1 All ER 873) at 406 (RPC) and 880gh (All ER), in the Caterham Car Sales
judgment (supra) at 950:
"First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the
purchasing public by association with the identifying 'getup' (whether it consists simply of a brand name or a trade
description, or the individual features of labelling or packaging) under which his particular goods or services are offered
to the public, such that the getup is recognised by the public as distinctive specifically of the plaintiff's goods or
services" (my emphasis).
See also Lord Jauncey at 417 (RPC). The words emphasised are pertinent and echo those of Nicholas J that
'the plaintiff must prove that the feature of his product on which he relies has acquired a meaning or significance,
so that it indicates a single source for goods on which that feature is used'.
(AdcockIngram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) at 437AB.) Put differently, reputation is
dependent upon distinctiveness (cf Van Heerden and Neethling at 169)."
Furthermore the reputation relied upon must have been in existence at the time the defendant entered the market,
in other words, a plaintiff cannot rely upon a reputation that overtook the business of the defendant, and it must
also exist when the misrepresentation is committed (Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd
and another (supra) at 950).
The existence of a reputation can be proved by direct evidence in the form of affidavits. This, however, is not the
only way. It has been held that:
"The manner and scale of use of the symbol in question can in itself be sufficient to warrant the conclusion that it must
have become recognised by a substantial section of the relevant public as distinctive of the plaintiff's goods, services or
business. That conclusion has been drawn from such evidence in a number of cases" (Cambridge Plan AG v Moore
1987 (4) SA 821 (D) at 837838 and the authorities there referred to, and Hollywood Curl (Pty) Ltd and another v Twins
Products (Pty) Ltd (1) 1989 (1) SA 236 (AD) at 250 where the judgment of Page J in the Cambridge Plan case (supra)
was approved).
The respondent did not dispute the vast sales figures testified to by the applicants' deponent. The respondent even
admitted that:
Page 534 of [2006] 3 All SA 529 (T)
"Smirnoff Ice had a considerable reputation at the time of the launch of the Nordic Ice spirit cooler."
Clearly the applicant would then have had a reputation at the time when the misrepresentation was committed.
The respondent, however, argued that Smirnoff Ice's considerable reputation at the time of the launch of the Nordic
Ice cooler, disappeared with the launch of the new Smirnoff Spin and whatever remained of that reputation after
the advent of Spin became deplete and no reputation worthy of protection remained.
It is trite that goodwill or reputation has no independent existence apart from the business it is attached to (Tie
Rack plc v Tie Rack Stores (Pty) Ltd 1989 (4) SA 427 (T) at 442). However, residual reputation may subsist after the
business itself has ceased (Polakow Brothers (Pty) Ltd v Gershlowitz 1976 (1) SA 863 (E)). This is a question of fact
which must be established by the plaintiff. Abandonment of a business resulting in the disappearance of the
goodwill must be alleged and proved by the defendant (Polakow Brothers (Pty) Ltd v Gershlowitz (supra) at 864865).
The respondent is apparently supported in its belief as to the disappearance of Smirnoff Ice's reputation by
"evidence" in the form of rumours and unconfirmed press statements. I quote from the respondent's answering
affidavit:
"9.8
During or about August 2002 the applicants decided to withdraw Smirnoff Ice from the South African market, and
by September 2002 at the latest, sales of Smirnoff Ice to the trade had effectively ceased in South Africa. Retail
outlets proceeded to sell their remaining stocks of Smirnoff Ice over the succeeding months. To the best of my
knowledge these sales were de minimis and have now ceased altogether. This understanding is supported by the
election of the applicants not to provide any details in their answering (sic) affidavit of volumes of sales of
Smirnoff Ice after September 2000."
(See further the subparagraphs to paragraph [21].)
The respondent also referred to an article which appeared in a trade magazine. I quote once more:
"7.12 I also refer in this regard to an article with the heading 'Readytodrink gets new Spin' in the 15 October 2002
edition of BISCommunity (a publication in the advertising industry) (a copy of which is attached hereto marked
'HD2') In this article Mr May is quoted, inter alia, as stating that:
'Consumers particularly loved the clear liquid and describe Smirnoff Spin as more masculine and adult,
sharper and less fruity. Its embossed bottle and blue and silver colouring maintains its sophistication and
its clear liquid is closer to its Smirnoff trade mark and pure Vodka heritage.'
7.13
Dealing with the RTD market, May states as follows:
'In this sector, consumers gravitate towards new products for their novelty and perceived fashionability in pack and
flavour, and product life cycles are short as brands lose consumer relevance. Through Smirnoff Spin we wanted to
create a clear break from the rest of the pack. We believe our new product will revitalise the category.'"
(See also paragraph 7.14 where reference is made to a newspaper article which appeared in the Sunday Times on