Provita owner National Brands, a subsidiary of AVI, has lost a trademark battle against competitor Snactive after the Gauteng High Court (Pretoria) concluded its rights did not extend to its biscuit's characteristics.

The court ruled that while National Brands has a ‘clear and protected right’ as far as its registered Provita trademark is concerned, it agreed that this right does not extend to the product.

As a result, no right had been infringed.

National Brands had asked the court for interdictory relief to stop the manufacturing, marketing and selling of Snactive, a competing savoury biscuit which entered the market in 2012.

Fin24 reports that the company argued that Snactive biscuits are ‘virtually identical in shape and appearance’ to the ‘extremely well-known’ and trademarked Provita biscuit.

The Provita biscuit's shape, rounded edges, and ‘unique pattern of docking holes’ appeared on Snactive's product, and serves to confuse members of the public, it argued.

However, in a judgment delivered on 30 June, National Brand's case against Continental Biscuit Manufacturers was dismissed with costs.

Continental Biscuit Manufacturers admitted it had entered the savoury biscuit to compete with Provita, but further argued it offered consumers a choice, and had three fundamental differences – the brand name, the packaging and the ingredients.

It disputed that Provita's rights under its trademark extended to the biscuit itself and the shape.

The Star reports that Judge Mandla Mbongwe observed that the Provita box was half the size of the respondent’s product and consisted of a typical brown paper box.

At the top centre of the box is the usual ‘Bakers’ logo. The word ‘’Provita’’, among others, appears dominantly in the middle and across the box with the word ‘Multigrain’.

The respondent’s packaging, on the other hand, is a colourful shiny box with yellow, green, two stripes in burgundy and white, and small portions of typical brown paper colour. The words ‘Tasty treats’ appear on the red background on top left of the box. The word ‘Snactive’ is dominant and almost in the middle and across the box and is written ‘Snac’ in red and ‘tive’ in green.

‘It is impossible to mistake the two packaging boxes. They are completely distinct, particularly in size, the respondent’s box being almost twice as big to that of the applicant,’ the judge said.

Mbongwe said there were clearly no similarities between the two, and the applicant was thus not entitled to the interdict it was asking for. He added that the applicant’s implied contention that it had rights infringed on, and that the use of the biscuit by the respondent constituted a deception or misrepresentation, was misplaced and stood to be rejected.

The judge said the difference between the words ‘Provita’ and ‘Snactive’ was so vast it rendered it impossible that confusion could arise as a result of the respondent’s use of the brand name Snactive on its get-up packaging.

‘The difference in the two brand names can easily be discerned or noticed by an average intelligent person and consumer interested in any one of the two competing biscuit brands.’

He added that the savoury biscuits concerned were luxury items and the consumers thereof were affluent persons who knew what they wanted and were unlikely to be easily deceived.

Full Fin24 report

Full report in The Star