Colgate-Palmolive SA has won its long-running battle with Bliss Brands over the packaging of Bliss’ Securex soap, which Colgate claimed was similar to its Protex brand.

The Constitutional Court yesterday dismissed a leave to appeal by Bliss to review the decision by the Advertising Regulatory Board (ARB) that it refrain from using packaging similar to that of Protex.

BusinessLIVE reports that Bliss had argued before the apex court that the ARB has no authority to take action against it as it is not a member of the body.

However, Judge Mbuyiseli Madlanga said: ‘I think that it is too much of a leap for Bliss Brands to suggest that all non-members that participate in ARB proceedings without demur do so under coercion. Surely, one cannot discount the possibility that some non-members participate in the proceedings willingly, thus submitting to the ARB’s jurisdiction.'

Madlanga wrote in a unanimous judgment: ‘It seems to me that the question whether a non-member has submitted to the ARB’s jurisdiction depends on the facts: what did the non-member do or not do? Based on the facts, the next question is whether the legal conclusion that there was submission can be drawn. With the above in mind, did Bliss Brands submit to the ARB’s jurisdiction? The SCA held that it did. It held thus based on the following facts. The letter that advised Bliss Brands of the complaint requested it to "inform us if you do not consider yourself to be bound by the ARB" and advised that Bliss Brands was not obliged to respond or furnish a defence. Bliss Brands rendered a detailed response to the merits of the complaint without any objection to the ARB’s jurisdiction.’

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