Nestlé (South Africa) (Pty) Ltd v Mars Incorporated

Mars Incorporated and Nestlé (South Africa) (Pty) Ltd are competing confectionery manufacturers. Mars complained to the Advertising Standards Authority of South Africa (ASA) that Nestlé’s use of humanised Smarties characters in its advertising and packaging copied Mars’s long‑established M&M’s brand characters, allegedly breaching clause 9.1 of the Code of Advertising Practice. At the same time, Mars had applied to register its brand characters as trade marks, and Nestlé’s Swiss principal intended to oppose those applications before the Registrar of Trade Marks. The ASA directorate refused to consider Mars’s complaint, stating that the matter should first be determined under trade mark law and that the ASA was not the appropriate forum until the trade mark proceedings were finalised. Mars applied to the Witwatersrand Local Division to compel the ASA to consider and rule on the complaint. The High Court upheld Mars’s application, and Nestlé appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The order compelling the ASA to consider and rule on Mars’s complaint was upheld.

The case affirms that self‑regulatory bodies like the ASA are legally bound to perform their contractual obligations under their governing codes and may be compelled by courts to do so. It clarifies the relationship between ASA proceedings and statutory intellectual property processes, confirming that advertising complaints must be dealt with independently of trade mark disputes. The judgment is an important authority on the enforceability of self‑regulatory mechanisms and the limits of their discretion to refuse jurisdiction.