In this day and age, consumers tend to trust brands they know over trying something new. This especially rings true for online shopping where the consumer can only inspect the product virtually or through photographs. The average consumer will more pleasantly associate products to the brand name imprinted thereon.

The name, branding, style, shape, and association of a product or service is part and parcel of what makes it more attractive to the consumers. It is thus no surprise that there are various rights and responsibilities afforded towards protecting such a keen business interest as the intellectual property of a business. Intellectual property rights take many shapes, each with its own legislative encompassments. There has recently been a surge of legal cases made for the protections of Intellectual property –
A short overview of some of the protections which a business or an owner can obtain towards its intellectual property are:

  1. Patents – Defined under the Patents Act, 57 of 1978, as the granting of a patent for “any new invention which involves an inventive step, and which is capable of being used or applied in trade or industry or agriculture” ;
  2.  Copyright – Defined under the Copyright Act, 98 of 1978, as a number of works which are eligible for the protection under copyright, inclusive of
    (a) literary works; ·
    (b) musical woiks;
    (c) artistic works;
    (d) cinematograph films, to which are assimilated works expressed by a process analogous to cinematography;
    (e) sound recordings;
    (f) broadcasts;
    (g) programme-carrying signals…
    Each work carrying its own discretion of eligibility towards copyright.
  3. Trade secrets – which are catered for through various legislative works and the common law.
  4. Trade Marks – catered for under the Trade Marks Act, 194 of 1993, carrying its own distinctive protections and summarily defined as “a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person”.

The intricate balance between the various rights and protections afforded to companies, persons and works, services or products produced by them is the subject of years of legal enigmas. Case upon case has been litigated and adjudicated upon, which have brought the everyday person closer to understanding the complexities present.
For purposes of this paper, a new court case will be examined, namely the case of Dart Industries Incorporated and Another v Botle Buhle Brands (Pty) Ltd and Another 2023 (4) SA 48 (SCA).

Looking at the Dart Industries case, the matter in dispute relates to the specific shape of bottle. That is correct. The shape of the bottle was the subject of a trademark dispute. The bottle in question had specific “hour-glass shape with indentations”. The Court had to firstly consider whether the shape of a plastic bottle was able to be trademarked and valued for protection as such. To this end, one might expect that the question is easy to answer, however the Court went into great detail of how it made its inevitable judgement.

What is notable for the businesses reading this and considering whether your own products can be protected under this right, the Court’s line of thought was when you look at the market in which your product is categorised will the shape of your own product stand with a distinctive feature above its competition. This approach is further endowed as – will the average consumer market associate the specific shape of a product solely with a specific brand name. A modern-day example would be the specific “Four-finger wafer shape of a Kit-Kat bar”. South Africa has seen advertisements and specific marketing towards the wafer shape of Kit-Kat chocolate bars for many decades. It is a recognised shape, and its well associated with the old saying of “Have a break, have a KitKat”. The specific shape of KitKats are protected even, as per the matter of Nestle v International Foodstuffs case.

The eventual outcome of the Dart Industries case was that the shape of the bottle is not a reliant associated shape to be protected as a trademark. However, the Court went further. The Court made great reliance on the goodwill which Dart Industries acquired. Dart Industries is also known as Tupperware. The long-standing name and goodwill of Tupperware is well known in South Africa, and needs no further explanation.

What the Court had recognised is that Botle Buhle had been “Piggy-backing” off of the well-known goodwill of Tupperware and was able to excel its own sales by its products looking “almost identical” to those of Tupperware’s. This again decreasing the sales of Tupperware’s products. Many of the consultants and sales persons would sell Tupperware’s bottle side-by-side to the Botle Buhle bottle. This caused economic damage to Tupperware’s sales and its goodwill as the Botle Buhle products were being similarly associated to that of Tupperware. This, the Court upheld was a protectable interest.

The Dart Industries case is a great look into the specific complexities of Intellectual property. To sum up the values placed on the protection of intellectual property and how they come to be – there is no specific way in which you should break a KitKat, but there is the way which the average consumer would recognise as being the correct way of doing it.

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