Pretoria - The battle of the savoury biscuits unfolded in the Gauteng High Court, Pretoria, with the manufacturers of Provita claiming that Snactive biscuits infringed on their trademark.
National Brands wanted an interdict against Continental Biscuit Manufacturer as it claimed that its biscuits looked similar to those of Provita, which could lead to the public believing it was a similar product.
Continental vehemently denied this and argued that National Brands merely wanted to stifle competition and to consolidate its monopoly in the savoury biscuit market.
It said that it had become aware of a business opportunity in the savoury biscuit market in the country, and of National Brands’ dominance in the business.
Relying on his “years of experience” in biscuit manufacturing, the manager of Continental added to its range of biscuits and introduced to the market the Snactive biscuits in 2012, after years of planning, and admittedly to compete with the applicant’s (National Brands) Provita biscuits.
Eight years after the Snactive biscuits had been on the market, the applicant took issue with the product and claimed that the biscuits were “virtually identical in shape and appearance to the Provita biscuit”.
National Brands said Provita biscuits have been sold and advertised in South Africa since the 1940s. It added: “Having regard to the eight decades of use of the Provita trade mark and Provita biscuit shape, there can be no doubt that products sold under the brand and, in particular, the biscuits forming the subject matter of this dispute, are extremely well known.”
It said the public would immediately identify the Provita trademark as well as the Provita biscuit shape, appearance and packaging with National Brands. It complained that the respondent’s use of the Snactive biscuit resulted in the public perceiving the Snactive biscuits to be a product of National Brands or part of its range of products.
Judge Mandla Mbongwe observed that the Provita box was half the size of the respondent’s product and consisted of a typical brown paper box on which images of wheat appear in colours.
At the top centre of the box is the usual “Bakers” logo. The word ‘’Provita’’, among others, appears dominantly in the middle and across the box with the word “Multigrain”.
The respondent’s packaging, on the other hand, is a colourful shiny box with yellow, green, two stripes in burgundy and white, and small portions of typical brown paper colour.
The words “Tasty treats” appear on the red background on top left of the box. The word “Snactive” is dominant and almost in the middle and across the box and is written “Snac” in red and “tive” in green.
“It is impossible to mistake the two packaging boxes. They are completely distinct, particularly in size, the respondent’s box being almost twice as big to that of the applicant,” the judge said.
Judge Mbongwe said there were clearly no similarities between the two, and the applicant was thus not entitled to the interdict it was asking for.
He added that the applicant’s implied contention that it had rights infringed on, and that the use of the biscuit by the respondent constituted a deception or misrepresentation, was misplaced and stood to be rejected.
The judge said the difference between the words “Provita” and “Snactive” was so vast it rendered it impossible that confusion could arise as a result of the respondent’s use of the brand name Snactive on its get-up packaging.
“The difference in the two brand names can easily be discerned or noticed by an average intelligent person and consumer interested in any one of the two competing biscuit brands.”
The judge added that the savoury biscuits concerned were luxury items and the consumers thereof were affluent persons who knew what they wanted and were unlikely to be easily deceived.
Pretoria News