REPUBLIC OF SOUTH AFRICAIN THE SUPREME COURT OF APPEAL OF SOUTH AFRICACASE NO. 286/2000In the matter betweenBlue Lion Manufacturing (Pty) LtdAppellantandNational Brands Limited RespondentBefore:HARMS, SCHUTZ, ZULMAN, CAMERON and MTHIYANE JJAHeard:11 May 2001Delivered:18 May 2001Passing off – wrappings of coconut biscuits – similar get-ups and similarlylettered marks Tennis and Tea Lovers – intention to take unlawful advantageof reputation relevant – probability of deception and confusion established –impermissibility of using unlawful competition to create a passing off out ofsomething less than a passing off.
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2______________________________________________________________J U D G M E N TSCHUTZ JA:A record of 720 pages and heads of argument totalling 57 pages havebeen placed before us in order to allow us to decide whether the wrapping ofits coconut biscuits used by one manufacturer passes itself off as the wrappingof another manufacturer of similar biscuits. I acknowledge, of course, that anapplicant in a passing off case must prove his reputation and that that mayrequire a considerable body of evidence, that it behoves him to proveinstances of actual deception or confusion if such evidence may be found(one instance was raised in this case), and that the applicant sought to provefraudulent intent, as it was entitled to do. But for the rest the case wasessentially one of first impression of the two wrappers. Perhaps the mainreason why the record became unnecessarily inflated was that the applicant