Blue Lion Manufacturing (Pty) Ltd v National Brands Limited

National Brands Limited has manufactured and sold its well‑known “Bakers Tennis” coconut biscuits since 1911 and enjoys a substantial reputation in that product and its get‑up. In 1998 Blue Lion Manufacturing (Pty) Ltd introduced “Tea Lovers” coconut biscuits using packaging that closely resembled the Tennis biscuit wrapping, including a lustrous white background, similar colour schemes, biscuit imagery, and prominently displayed red, gilt‑edged lettering beginning with a similar stylised “T”. National Brands alleged that this similarity was calculated to deceive or confuse consumers into believing that Tea Lovers biscuits were Tennis biscuits, or associated with them. Evidence included an instance of actual consumer confusion and circumstances suggesting deliberate imitation. Blue Lion denied passing off, arguing that sufficient distinguishing marks were present and that intention was irrelevant.

The appeal was dismissed with costs, including the costs of two counsel. The interdict granted by the court a quo restraining Blue Lion from using the impugned get‑up was confirmed.

The case is an important authority in South African passing‑off law on get‑up imitation. It clarifies the assessment of likelihood of deception from the perspective of the average purchaser, affirms the evidentiary value of actual consumer confusion, and underscores the relevance of intention to exploit another’s goodwill. It also reiterates that unlawful competition cannot be used to bypass the established requirements of passing off, thereby guarding against the creation of improper monopolies in product get‑ups.