Two of the country’s giant food retailers, Checkers and Pick n Pay, were at loggerheads over “similar” luxury food rangers, with Checkers turning to court in a bid to prevent its competitor from passing off its Crafted Collection products as those of Checkers.
The dispute relates to Checkers signature Forage and Feast brand and Pick 'n Pay’s competing Crafted Collection range of products.
Checkers complained to the Western Cape High Court that Pick n Pay was infringing upon its common law rights in the form of goodwill and reputation associated with its well-known Forest and Feast range, through its manufacturing and/or offering for sale its competing Crafted Collection range of products.
Pick n Pay rejected the alleged infringements and contended that its products, while in competition with those of Checkers, did not in any way create consumer or public misrepresentation to the detriment of its competitor.
Pick n Pay argued that Checkers was merely out to stifle competition and to consolidate and strengthen its monopoly in the market.
The Forest and Feast range of products were launched in November 2020 as a new premium luxury range of products that were previously exclusive and typically found at speciality delicatessens and food emporiums.
Checkers said its outlets sold about 2 560 000 Forage and Feast products annually. Close to R60 million was invested in advertising expenditure and the products had therefore been widely exposed to the South African public.
The range was endorsed by South Africa’s world-renowned and esteemed chef, Jan Hendrik van der Westhuizen, who was awarded the prestigious Michelin star. The range places an important emphasis on the use of high-quality ingredients, responsible sourcing and adherence to seasonal availability.
The prominent and conspicuous features of the Forage and Feast get-ups include unique and distinctive combination of elements The mark Forage and Feast at the top of the packaging in a disconnected calligraphic cursive font in gold. It also bears a prominent use of the colour combination comprising navy, blue and gold.
Pick n Pay has sold the range “Finest” between 2012 until 2016. The range was terminated and replaced by the “Promise” range which is available for purchase at Pick n Pay stores.
During 2021, Pick n Pay introduced a premium, exclusive range of products for its core upper customers.
The name was initially conceptualised under the brand “Signature”, however, Pick n Pay discovered that it was a registered trademark of Checkers.
Pick n Pay said it had one a lot of research into the colouring and design of its packages and had settled on blue. Ultimately, it had adopted “Crafted Collection” as its brand name.
Checkers submitted that the colour combination of navy, blue and gold on Pick n Pay’s range was used in similar proportions to that which Checkers applied in its products.
It said the fact that Pick n Pay had a historical connection with the colour blue did not provide legitimate justification for the adoption of product packaging or labelling for a range of products that imitated that of a competitor.
Checkers said Pick n Pay used identical packaging or bottling in many instances, as in relation to rusks, olive oil and vinegar. The labels of Pick n Pay’s products contained a similar elegant, simple and artistic portrayal of the ingredients and/or main elements contained in the products.
Acting Judge President Patricia Goliath said: “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 respondent, believing that there is a connection or association, in the course of trade, between Checkers and the goods offered by Pick n Pay.”
She said that while not every item in the Crafted Collection range resembled an item in the Forest and Feast line, a significant proportion of the items possessed a comparable visual and tactile experience, rendering them nearly indistinguishable from the Forest and Feast line.
Pick n Pay was interdicted and restrained from passing off its Crafted Collection products as those of Checkers, in particular its Forage and Feast range.
Judge Goliath also rendered that Pick n Pay destroy all printed materials, product packaging bearing the infringing get-ups, which were under its control.
Judge Goliath directed that an inquiry be held to determine the amount of any damages to be awarded to Checkers.
Pretoria News