Passing off products in South Africa taken with more than a pinch of salt

Most South Africans know better than to get in between a fellow South African and their beloved braai (that’s barbecue to foreigners). Our courts seem to concur, as noted in a recent judgment handed down by the full bench of the Eastern Cape High Court of South Africa. The court decided on a dispute spanning just over two years between two salt giants, Cerebos and Swartkops Sea Salt.

The judgment

In the judgment, Cerebos was interdicted and restrained from passing off its braai salt product as that of Swartkops’ braai salt product.

The interdict prevents Cerebos from using the current get-up (appearance) of its Buffalo braai salt or any get-up confusingly or deceptively similar to the get-up (or style) of Swartkops’ well known orange-bottle braai salt.

The order handed down by the Appeal Court also made provision for an inquiry into the damages suffered by Swartkops as a result of the unlawful conduct of Cerebos.

Battle of the salts

The battle of the salts began at the end of 2010, when Cerebos launched its Buffalo braai salt product with a noticeably similar get-up to that of the Swartkops orange-bottle braai salt. Swartkops’ large orange bottle of braai salt was unique to the salt market, particularly in the braai salt arena.

Following Swartkops’ failed communications with Cerebos, Swartkops followed suit by instituting passing off proceedings against Cerebos in 2011.

At that stage, in response to the letter of demand, Cerebos had made slight changes to its product, such as replacing the brown lid with a black lid. This did little to appease Swartkops as the contentious orange bottle remained, along with other features shared by the two products.

Nombulelo Kambule is a trademark attorney at DM Kisch