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South Africa: A passing off judgment

# South Africa: A passing off judgment

Sumeet
- 12 April 2021

The South African Supreme Court of Appeal (SCA) handed down its judgment in a passing off case recently – *Koni Multinational Brands (Pty) Ltd v Beiersdorf AG (553/19) (2020) ZASCA 24,* 19 March 2021.The issue here was whether a shower gel product called CONNIE MEN passed off a long-established brand NIVEA MEN. The similarities were all in the packaging, with both featuring:

- A colour combination of blue, white and silver, in the form of an elongated rectangular bottle with a blue base and a silver lid.

- A wave-styled label.

- The trade mark in white font on a blue background with a silver outline.

- The use of bright green lettering.

In order to prove a passing off it is necessary for the plaintiff to establish that its mark has a reputation. This proved to be easy for Beiersdorf, with its NIVEA brand having been in South Africa for many years, and the brand having a 50% market share. The majority (four of the five judges) had no difficulty finding that there had been passing off.

What is unusual about this case, however, is that there was a very long and very robust dissenting judgment from one judge. Judge Makgoka concentrated on the following issues:

- The fact that the usage of the NIVEA brand has been very inconsistent over the years, with many different colour combinations having been used.

- The fact that the brand names used by the two parties were very different – NIVEA v CONNIE.

The judge remarked that ‘it* would take a particularly careless purchaser’* to confuse the products, one who would *‘have to totally ignore the CONNIE trade mark so clearly and prominently displayed on the Koni shower gel*.’

The dissenting judgment is a reminder that trade mark owners are well advised to register the entire label (in addition to the word mark) rather than rely on the difficult action of passing off.