Pioneer Foods fails to stop rival selling maize meal in similar packaging

Pioneer's White Star super maize meal

Source: Pioneer Foods

Pioneer has been complaining since 2011 that Bothaville Milling was selling its Star super maize meal in packaging confusingly similar to its own White Star product.

Maize meal is a staple diet for most South African households and competition in selling the product helps to keep prices reasonable.

Bothaville Milling‚ which started selling its maize meal in 2003‚ had accused Pioneer of stifling legitimate competition.

White Star's sales increased from 16,000 tons in 1999 to just under 400,000 tons in 2010. A survey that year showed White Star was one of the two top-ranked brands for super maize meal in the country.

Similarities

The packaging for both products is white with the brands' text and symbols in either green or red. Both depict a red star.

The star sign is larger and more prominent in the case of White Star and situated slightly above the centre of the package.

Star's branding has the red star superimposed on a green circle in the upper half of the pack.

In its defence‚ Bothaville Milling‚ a family business which has been using the Star "get-up" in its present form since 2003‚ said the competing products had coexisted in the marketplace without any instances of confusion and deception for more than a decade.

Pioneer's application to restrain Bothaville from passing off its products as that of Pioneer was dismissed by the Free State High Court in Bloemfontein in September 2012.

On Wednesday‚ the Supreme Court of Appeal dismissed Pioneer's appeal. It held that although there were some similarities between the two "get-ups"‚ the dissimilarities would be obvious when a customer was faced with the two products.

No reasonable confusion

"In my view they are sufficiently apparent and obvious to hold that there is no reasonable likelihood of confusion between the two‚" Judge Malcolm Wallis said in a judgment of the full bench.

Judge Wallis said if he had some residual doubt about the position‚ it would be dispelled by the fact that there was no evidence of any confusion in the marketplace between the two products between 2001 and the commencement of proceedings in August 2011.

"Although such evidence is not essential to prove a likelihood of confusion in the marketplace‚ it can‚ if it is present‚ tip the balance in one direction and‚ if absent‚ tip it in the other‚" he said.

Judge Wallis said it was surprising that after nearly 10 years of competitive trading not a single customer or store had reported any confusion.

Principally wholesale

He said the evidence showed that Bothaville Milling had sold its Star product principally to the wholesale market and had 102 clients in 68 towns‚ some large national chains.

"These wholesalers have then sold Star super maize meal to retail outlets or possibly individual customers in many parts of the country‚ especially the Free State‚ KwaZulu-Natal and the Eastern Cape.

"Yet there is no evidence of a wholesaler being misled‚ or of a retail customer complaining that they had inadvertently purchased Star when they wanted to buy White Star."

Judge Wallis said he did not think that this could be attributed to potential customers being unsophisticated or‚ as suggested‚ to the different brands of super maize meal all being essentially the same.