Competion case.pdf - REPUBLIC OF SOUTH AFRICA IN THE...

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REPUBLIC OF SOUTH AFRICA IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA CASE NO. 286/2000 In the matter between Blue Lion Manufacturing (Pty) Ltd Appellant and National Brands Limited Respondent Before: HARMS, SCHUTZ, ZULMAN, CAMERON and MTHIYANE JJA Heard: 11 May 2001 Delivered: 18 May 2001 Passing off – wrappings of coconut biscuits – similar get-ups and similarly lettered marks Tennis and Tea Lovers – intention to take unlawful advantage of reputation relevant – probability of deception and confusion established – impermissibility of using unlawful competition to create a passing off out of something less than a passing off.
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2 ______________________________________________________________ J U D G M E N T SCHUTZ JA: [1] A record of 720 pages and heads of argument totalling 57 pages have been placed before us in order to allow us to decide whether the wrapping of its coconut biscuits used by one manufacturer passes itself off as the wrapping of another manufacturer of similar biscuits. I acknowledge, of course, that an applicant in a passing off case must prove his reputation and that that may require a considerable body of evidence, that it behoves him to prove instances of actual deception or confusion if such evidence may be found (one instance was raised in this case), and that the applicant sought to prove fraudulent intent, as it was entitled to do. But for the rest the case was essentially one of first impression of the two wrappers. Perhaps the main reason why the record became unnecessarily inflated was that the applicant
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