By: Chevon Booysen - IOL

Retail giant Pick n Pay has indicated its intention to appeal a Western Cape High Court judgment to damage all print works, all printed materials, product packaging, and the like bearing the infringing get-ups similar to its rival Shoprite Checkers’ Forage and Feast products.

The battle between the two landed in the Western Cape High Court after Shoprite took issue with Pick n Pay on grounds that the product looked similar.

At the centre of the dispute was Checkers’ signature Forage and Feast brand and Pick n Pay’s competing Crafted Collection range of products.

Shoprite sought “interdictory and ancillary relief”, premised on alleged infringements based on passing off under common law.

Pick n Pay rejected the alleged infringements but lost the court bid despite their arguments in which they said their competitor sought “merely to stifle competition and to consolidate and strengthen its monopoly in the market”.

The Forest and Feast range of products were launched and unveiled in November 2020 as a new premium luxury range of products which were previously exclusive and typically found at speciality delicatessens and food emporiums. The Forage and Feast assortment was available for purchase at Checkers and Checkers Hyper outlets nationally, and has generated extensive nationwide sales in excess of R180 million, according to the court papers.

Shoprite averred that its outlets sell about 2 560 000 Forage and Feast products annually.

Since its launch, the range has undergone development in more than 34 distinct product categories, with plans to further expand its offerings by including an additional 100 products.

About the exclusive range, Shoprite argued that substantial sums of money “amounting close to R60 million was invested in advertising expenditure and the products have therefore been widely exposed to the South African public”.

In their arguments, Pick n Pay submitted that in 2021 they resolved to introduce a new premium, exclusive range of products for its core upper customer with the primary objective of the range being to establish a new premium, exclusive “foodie brand” across multiple categories.

Further in their arguments defending that they were not imitating the Forage and Feast brand, Pick n Pay argued that “since the law of passing off is not intended to defend monopolies, mere imitation of distinguishing characteristics is insufficient”.

In her judgment, acting Western Cape High Court Judge Patricia Goliath said: “Considering the notable similarities in terms of colour, typefaces and packaging, I am satisfied that the Crafted Collection range, viewed holistically, is almost certain to confuse and deceive the public, and potentially result in damages for the applicant.

“The manner in which the respondent had dissected the overall get-up of the Forest and Feast range is artificial and contrary to the well-established test to be applied in matters of this nature.

“In my view the notional consumer of average intelligence, viewing the products as a whole or looking at the dominant features of each get-up in general, is likely to be confused, or deceived into buying the product of respondents believing that there is a connection or association.”

Pick n Pay was also interdicted and restrained from passing off its Crafted Collection products as those of Shoprite’s premium food range.

A Pick n Pay spokesperson said: “We are disappointed with the judgment. Our intention is never to mislead customers, and we do not believe we have done so.

“We are proud of our Crafted Collection range, which gives customers great quality, value and innovation. We will seek leave to appeal the judgment.”

Enquiries to Shoprite were not answered by deadline on Monday.

Cape Times

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