The posh-nosh spat has been much in the news. I refer, of course, to the judgment in the case of
The FORAGE AND FEAST range
In
The CRAFTED COLLECTION range
In 2021, retail rival
A claim of passing-off
The law of passing-off
Judge Goliath then did what judges faced with a passing-off claim tend to do, she looked at the considerable body of South African case law that exists in this field and summarised the passing-off as follows:
What is passing-off?
This often-quoted definition comes from the famous
'The wrong known as passing off consists in a representation by one person that his business (or merchandise as the case may be) is that of another, or that it is associated with that of another, and in order to determine whether a representation amounts to passing off, one enquires whether there is a reasonable likelihood that members of the public may be confused into believing that the business of the one is, or is connected with, that of another.'
The minimum requirements for a passing-off claim
Some cases say that you need to establish a reputation and deception. Others talk of the three pillars of a passing-off claim, namely proof of reputation, misrepresentation and damages.
The evidence that is required is
...evidence of extensive use and advertising.
A reputation can be inferred
...from evidence of sales and advertising expenditure.
The Plascon-Evans case
The famous Plascon-Evans passing-off case tells us that a court must consider the following:
-
The similarities and differences in the get-ups.
- The likely impact of the respondent's trade mark on an average consumer, with average intelligence, eyesight and caution, taking account of the trade mark's sense, sound and appearance.
- How the get-ups are likely to be encountered in the market.
- The concepts of imperfect recollection, dominant features and the general impression created by the trade marks.
- The fact that the goods will not necessarily be seen side-by-side.
Applying the law to the facts
Judge Goliath made the following findings:
There was a reputation
The judge said that 'the Forest and Feast get-up had developed into a distinguishable and reputable brand ...comprising of substantial goodwill... and a large loyal and devoted group of customers.'
The goods
The judge also said that the products involved in this case were identical or comparable, with both operating in the same premium or luxury consumable market.
The get-ups
The judge said that 'a cursory look at the respective products reveals that the visual similarities between the get-ups are remarkable'.
Confusion
The judge further stated that she was 'satisfied that the Crafted Collection range, viewed holistically, is almost certain to confuse and deceive the public, and potentially result in damages to the applicant.'
She also said that 'the respondent's behaviour...is likely to detrimentally affect the applicant's reputation and goodwill.'
The end result
As passing-off had been established, an interdict was granted, together with delivery-up or destruction of goods, an enquiry into damages, and legal costs.
Reaction
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Mr
ENS
Foreshore
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