The more than four years of fierce legal battle over the soaps is still raging after Colgate’s victory that Bliss Brands (BB) Securex soap packaging is an imitation of Colgate’s Protex soap packaging.
The matter has turned in various legal forums - including the high court, the Supreme Court of Appeal and the Constitutional Court. Bliss was earlier told to withdraw its Securex soap packaging. Bliss subsequently released new packaging that is still similar to that of Colgate’s Protex soap packaging.
The court in February held that Bliss was in contempt of court, as it only made minor adjustments to its packaging, which is still similar to that of the Protex soap packaging - thus it was just a continuation of the original packaging.
The court at the time gave Bliss three months in which to change its packaging, which it had not done.
Instead, both Bliss and Colgate now turned to the Gauteng High Court, Johannesburg for urgent orders. Bliss wanted a stay of the original finding by the appeals arm of the Advertising Regulatory Board (ARB) that its packaging was the same as that of Colgate’s product.
They asked for the temporary stay of that order pending the outcome of a review application, which it intended to institute.
Colgate, on the other hand, said it is clear that Bliss is in contempt of court as it did not adhere to the earlier court order. It argued that Bliss first had to adhere to the order before it was entitled to launch the review application.
The legal battle of the soap packaging started in December 2019, when Colgate lodged a complaint with the ARB regarding Bliss Brands Securex soap for what it considered to be an imitation in the architecture of its Protex soap packaging.
The parties have subsequently been engaged in bruising commercially inspired litigation for over four years. The litigation concerns a single issue: the breach of the ARB’s Code of Advertising Practice (Code) by Bliss.
Colgate argued that Bliss was in breach of the Code by exploiting its advertising goodwill and by imitating its Protex packaging. The essence of the case of Colgate is that Bliss’s Securex is packaged in a manner that is so similar to that of Protex as to be indistinguishable.
Following several failed legal attempts against Colgate, Bliss was this year once again ordered to remove the “offending packaging” as well as the slightly modified packaging from all mediums in which it appears.
Bliss argued that it did indeed make changes to the packaging; thus, it argued, it did adhere to the court order.
Judge Bashier Vally, who adjudicated over this latest urgent application, commented that while Bliss did make some changes to its packaging, these do not detract from the fact that to a common eye there is no significant alteration in the packaging.
He observed that the new packaging very closely resembles the old one. “In fact, the two packages are so similar that it is difficult to distinguish one from the other except with a keen eye looking for the differences,” he said.
The conclusion of this holding, Judge Vally said, is that the order issued earlier this year has not been complied with.
The judge also noted that Colgate showed that the old packaging was still advertised on some websites. Bliss said it took measures to remove it. But Judge Vally said it did not show that the steps it has taken to have the offending advertisements removed have actually yielded any positive results.
“Hence, as of the date of this hearing it has to be accepted that the offending advertisements have yet to be finally and permanently removed from all websites under its control.”
Judge Vally found that Bliss thus did not adhere to the earlier order to change its packaging. “Unfortunately, disregard of and disrespect for orders of a court are not uncommon in our country,” he said.
He added that courts should not allow a contemnor to seek its protection and said allowing Bliss to continue with its application while carrying the stain of a contemnor would not only harm the repute and dignity of this court, it would also be telling Colgate – the party prejudiced by Bliss’s contempt – that its interests count for nothing.
He concluded that Bliss should not be allowed an audience in this court while it remains in contempt of the earlier order. “Bliss can easily overcome it by purging its contempt. Bliss, therefore, cannot claim that it is being denied access to a court. Its access is delayed, and the length of the delay depends on its own conduct,” Judge Vally said.