Checkers wins packaging challenge against Pick n Pay
The Western Cape High Court has ordered Pick n Pay to destroy the product packaging of its premium Crafted Collection brand of goods due to close similarities with the competing Forage and Feast range sold by Checkers, reports Fin24.
Pick n Pay must destroy ‘all printed materials, product packaging, and the like, bearing the infringing get-ups,’ in the presence of an authorised representative of Checkers, the court ordered.
In a retail environment, the term ‘get-up’ refers to the appearance and packing of goods. Acting Judge President Patricia Goliath also ordered that an inquiry be held to determine what damages Pick n Pay needs to pay its retail rival.
In her ruling, Goliath found that the get-up of Pick n Pay's Crafted Collection could ‘deceive the public’ into thinking the products were the same as the Forage and Feast premium range sold by Checkers.
Checkers launched its Forage and Feast range of products, which includes things like premium teas, olive oils, rusks and chocolates, in November 2020.
The retailer pushed their sale via a R60m advertising campaign and an endorsement by celebrity chef Jan Hendrik van der Westhuizen, the owner of Michelin-star restaurant JAN in Nice, France.
A year later, Pick n Pay introduced its exclusive range of foodstuffs under the Crafted Collection.
Checkers complained of the similarities in packaging between the two premium ranges. It accused Pick n Pay of trying to piggyback on the success of its Forage and Feast range.
The case was argued in court on 15 August 2023.
To win, Checkers needed to show two things. Firstly, that its Forage and Feast brand had developed into a ‘distinguishable and reputable brand’. And secondly, that similarities in packaging between Forage and Feast and the Crafted Collection could deceive the public, potentially resulting in lost sales.
Goliath found that Checkers had ticked both boxes, reports Fin24.
‘It has been unequivocally determined by the authorities that the reputation of the Forage and Feast range may be inferred from its extensive sales and marketing efforts,’ she said.
As for the similarities between the two ranges, Goliath said that some of the products were ‘nearly indistinguishable’.
‘A cursory look at the respective products reveals that the visual similarities between the get-ups are remarkable,’ she said.
While Goliath ordered Pick n Pay to pay Checkers' lawyers' fees, she did not award damages. She noted that such damages were difficult to quantify and would be the subject of a stand alone inquiry.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.