Herbal Zone (Pty) Limited v Infitech Technologies (Pty) Limited and Others

Herbal Zone (Pty) Ltd imported and marketed male potency herbal capsules under the name “Phyto Andro for Him” in South Africa. From 2009 to 2014 Infitech Technologies (Pty) Ltd was the sole distributor under a distribution agreement acknowledging Herbal Zone as owner of the mark. After termination of the agreement, Infitech and a related entity, Herbs Oils & Co (Pty) Ltd, distributed a competing product under the same name with similar packaging. Herbal Zone published advertisements and circulars warning that the competing product was counterfeit and threatened legal action. These actions led to police searches and arrests under the Counterfeit Goods Act, though no confiscation followed. Infitech and others applied for interdicts based on defamation, while Herbal Zone counter-applied for an interdict based on passing off.

The appeal succeeded in part. The High Court order was amended so that both the application and the counter-application were dismissed with costs. Each party was ordered to pay its own costs of the appeal.

The case clarifies the evidentiary burden for passing off in South African law, particularly the need to prove where reputation vests when multiple related corporate entities are involved. It also reaffirms that distributors cannot easily appropriate goodwill contrary to contractual acknowledgements and that interdicts against defamatory speech by trading corporations require a clear right and are inappropriate where material disputes of fact exist on motion.