Pioneer Foods (Pty) Ltd v Bothaville Milling (Pty) Ltd  2 All SA 282 (SCA) Division: SUPREME COURT OF APPEAL Date: 12 March 2014 Case No: 215/2013 Before: MS NAVSA, MJD WALLIS, NP WILLIS JJA, BC MOCUMIE and KGB SWAIN AJJA Sourced by: P Zachia Summarised by: DPC Harris . Editor's Summary . Cases Referred to . Judgment . Intellectual property Passing off Passing off occurs when one party represents, whether or not deliberately or intentionally, that its business, goods or services are those of another party or are associated therewith, and is established when there is a reasonable likelihood that members of the public in the marketplace looking for that type of business, goods or services may be confused into believing that the business, goods or services of one party are those of another or are associated with those of the other party Proof of passing off requires proof of reputation, misrepresentation and damage. Editor's Summary As a major producer and distributor of maize meal products, the appellant had marketed its super maize meal under the name "White Star" since 1999. It complained that the respondent was passing off its super maize meal, marketed under the name "Star", by selling it in a getup deceptively or confusingly similar to that of "White Star". It, therefore, it sought an interdict in the High Court, but its application was dismissed. That led to the present appeal. In alleging confusingly similar getup, the appellant referred to the facts that the respondent's product used the same three colours as it did on its product packaging; a prominent red star; prominent use of the name "Star" capitalised in red lettering; and a slogan very similar to that of the appellant's product. Held Passing off occurs when one party represents, whether or not deliberately or intentionally, that its business, goods or services are those of another party or are associated therewith. It is established when there is a reasonable likelihood that members of the public in the marketplace looking for that type of business, goods or services may be confused into believing that the business, goods or services of one party are those of another or are associated with those of the other party. The misrepresentation on which it depends involves deception of the public in regard to trade source or business connection and enables the offender to trade upon and benefit from the reputation of its competitor. Misrepresentations of this kind can be committed only in relation to a business that has established a reputation for itself or the goods and services it supplies in the market and thereby infringe upon the reputational element of the goodwill of that business. Accordingly, proof of passing off requires proof of reputation, misrepresentation and damage. In respect of the appellant's reputation in its product, the Court noted that the product was introduced to the market as a vitamin enhanced form of maize meal in 1999, and that the tonnage sold rapidly increased over the years. In 2010, the year before these proceedings were launched, a survey of top brands in South Africa showed that it and one other were the two topranked brands for super maize meal. In order to show passing off, the appellant had to show Page 283 of  2 All SA 282 (SCA) that it enjoyed the reputation that was under attack both at the time when the respondent entered the market with its getup and at the time of the misrepresentation that it sought to interdict. While acknowledging that the appellant had established some reputation in its product, the respondent denied the existence of such a reputation at the time when it entered the market with its own product. Based on the evidence, the Court accepted for the purposes of this judgment that the appellant had established that it enjoyed the requisite reputation in its getup at March 2001 and that that was the relevant first date for the purposes of its passingoff claim. The remaining issue between the parties was then whether the appellant had established the second and third requirements for passing off, namely misrepresentation and damage, by showing a reasonable likelihood that members of the public might be confused by the getup adopted by the respondent. The Court was required to consider the type and class of customers who would buy super maize meal and the circumstances in which such goods would be displayed for sale. The average customer was to be taken as someone of average intelligence, eyesight, observation and recollection. The two products had to 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. Applying that approach, the Court concluded that while there was undoubtedly some visual similarity between the two get ups, principally caused by the combination of a broadly white background with the symbols and lettering in red and green, the moment a customer saw a package the dissimilarities would become obvious. Such dissimilarities were sufficiently apparent and obvious to hold that there was no reasonable likelihood of confusion between the two. The court below was correct to hold that the appellant had failed to make out a case of passing off and in dismissing the application for an interdict. The appeal was dismissed with costs.