War over braai salt packaging heats up

FMCG SUPPLIER NEWS

Business Day - Nov 14th 2011, 08:20

A salt war is brewing between two competitors in the Eastern Cape over a claim by Swartkops Sea Salt that competitor Cerebos is passing off its braai salt as one of Swartkops’s own products that has been in production for more than 30 years. 

A salt war is brewing between two competitors in the Eastern Cape over a claim by Swartkops Sea Salt that competitor Cerebos is passing off its braai salt as one of Swartkops’s own products that has been in production for more than 30 years.

Swartkops on Friday indicated it would launch an application for leave to appeal against a judgment by the Eastern Cape High Court in Port Elizabeth that allowed Cerebos to retain packaging that Swartkops claims is similar to its own.

Swartkops Marina GM Bennie Bekker said: "If you look at both products, (Cerebos’s) product looks like an extension of our own. The public is being confused and misled. For the past 30 years, we have been producing braai salt in this bottle, which is not found anywhere else in the world."

Cerebos MD Len Chandler said the high court judgment was fair. "As the court found, there was no imitation whatsoever." Mr Chandler said that all Cerebos wanted was to sell its braai salt product.

Swartkops’s complaint was that Cerebos’s braai salt, launched last year, had a "get-up" — the product’s appearance as a whole — that was confusingly or deceptively similar to the get-up of Swartkops’ longstanding Marina braai salt.

The general appearance of a product may be protected by the law of passing off. This protects a trader against deception from misrepresentation by a rival over the trade source of the rival’s goods or services.

The company that seeks relief based on passing off must establish that its get-up has become distinctive of its goods or services in a sense that the public associates such get-up with the goods marketed by it.

The company must also satisfy a court that the get-up used by the competitor is used to cause the public to be confused or deceived.

Swartkops launched its Marina braai salt in 1980 in an orange packaging and get-up that has not changed in more than 30 years.

Last December, Cerebos launched its braai salt product under the Buffalo name and also used orange packaging.

While the high court found Swartkops had established the necessary reputation for its braai salt, it said differences in the containers would distinguish the products in the mind of the ordinary purchaser.