When news of the court case broke, many accused multinational giant Beiersdorf – owners of Nivea – of being a bully.
But, Johannesburg High Court Judge Denise Fisher didn’t share the general public’s sentiment and has ordered Ferguson to come up with new packaging for her Connie Bodycare Men Shower Gel.
Ferguson’s company, Koni Multinational Brands, which was launched in 2012, must now go back to the drawing board and remove all images of the offending packing from websites, social media platforms and signage, TimesLive reports.
While Judge Fisher conceded that there were significant differences in packaging, she ultimately ruled that there were also many similarities that could confuse the consumer into buying her product when they actually intended to buy Nivea’s product.
“A shower gel is of the nature of products that are often the subject of an impulse buy, which has the effect that the chances of error are enhanced. In grabbing at a relatively small purchase, a consumer would be less likely to be overly exacting or discerning in relation to brand and more likely to succumb to immediate impressions,” Fisher was quoted saying the report.
Beiersdorf filed papers against Ferguson in December 2017, accusing the local star’s company of using the same Nivea signature blue container and silver and yellow fonts on the packaging of her men’s shower gel.
It wanted Ferguson interdicted in order to “restrain the respondent from passing off its Connie Body Care Men Active Shower Gel as being that or as being associated with that of the applicant, by making use of a get-up in respect of the infringing shower gel, which is likely to cause confusion or deception in the market as to the source of its goods or as to its connection or relationship with the applicant”.
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In court papers, the multinational argued that it had generated over R8,7 billion in turnover from the South African market since 2012, of which around R258 million came from shower gel sales.
Beiersdorf relied on pictures of its packaging dating as far back as 1925 to demonstrate the company’s longstanding use of its distinctive blue packing with white writing.
“In 2008, the applicant relaunched its Nivea Men range by, inter alia, applying a new get-up to its Nivea Men packaging, the applicant added the colour silver to its distinctive blue and white get-up. The applicant is, in fact, aware of actual confusion in the trade,” court papers state.
Fisher agreed, finding that there were striking similarities between the two products, including the prominent use of a wave label with a dark blue background, silver border and name written in white, the containers were near identical in terms of height, volume and width, the dark blue container and silver lid as well as the green lettering.
Ferguson couldn’t immediately be reached for comment, but in answering affidavits filed at the High Court, Ferguson and her business partner Groovin Nchabeleng, accused Beiersdorf of being a bully.
“The respondent is bringing healthy competition to the men’s shower gel market and the applicant, being a multinational company, is trying to bully and intimidate the respondent by bringing this baseless application,” the court papers read.
They claimed that the multinational is targeting them over other brands like Clere, Vaseline and Protex, which also make use of similar packaging and colour palettes.
“The applicant cannot claim monopoly over the blue, white and silver colours,” the pair said.
They have been ordered to pay legal costs as well.