Die Bergkelder v Delheim Wines (Pty) Ltd

• Jurisdiction: South Africa
• Judge: van Heerden J
• Judgment Date: 12 June 1980
• Citation: 1980 (3) SA 1171 (C)
• Hearing Date: 06 November 1979
• Court: Cape Provincial Division

Van Heerden, J.:

In an application for an order restraining respondent from B passing off its wine as that of the applicant's, applicant alleged the following:

That through itself, and its predecessor Distillers Corporation (SA) Ltd, Grünberger Stein wine has for many years been sold in the Republic of South Africa in a green glass bottle of a distinctive shape which has become unique in the sale of South African wines, although localised use C thereof has been made in Germany in respect of wines which have never reached South Africa in any significant quantities in bottles of the type in question. The bottle in question is known in Germany as "bocksbeutel" and its use is confined to Stein wine from the Würzberg area. Use has also been made of similarly shaped bottles in respect of Portuguese wines which have reached this country in limited quantities. In the case of these wines, the bottles used in respect of the white wines is colourless and D the only green bottle used contains a rosé wine. These bottles furthermore were not identical in shape or dimensions to that used in respect of Grünberger Stein, although their shape is substantially similar thereto. The wines thus imported in limited quantities to this country are Mateus E Rosé (in a green bottle) and Lagosta Vinho Verde and Casal Garcia Vinho Verde in clear bottles. The use of the bottles in respect of the two last mentioned wines is extremely limited inasmuch as they are also imported in bottles of conventional or different shapes and the use of the bottle of a shape similar to that used for Grünberger Stein is of recent origin. That the National Liquor Survey, 1977, revealed that imported high priced F unfortified wines constituted 0,6 per cent of the total of wines sold and bearing in mind that the three wines imported in the bottles in question constitute only a few of the many brands of wine imported into this country then it becomes apparent that such use of similar bottles could not materially have affected the reputation enjoyed by the applicant.

G That Grünberger Stein was sold in the aforesaid bottles on an extensive and ever increasing scale throughout South Africa from 1951 onwards and that such sales were accompanied by extensive advertising throughout the Republic of South Africa in various media. In these advertisements the shape and colour of the bottle were prominently featured and it was furthermore featured as the "Grünberger Bottle" which imprinted it on the H minds of the public, as an indication of the origin of the wine in question.

That applicant introduced a Grünberger Spätlese wine in November 1972, which was sold in the identical bottle, with various minor differences in get-up, and sales of this wine have been regular but on a fairly small scale. In October 1977 applicant also introduced a new Grünberger wine, namely Blanc de Blancs, which is expected to sell on a large scale in future, and which is marketed in the same distinctive bottle with appropriate alterations in get-up.

Van Heerden J

That applicant has since 1971 conducted an extensive and everincreasing advertising campaign in the press, over the radio and at points of sale, in respect of Grünberger wines in which once again the distinctive bottle A has predominated the image created.

That Grünberger Stein sells at a retail price of approximately R1,40 per bottle and is classified as a higher priced white wine. That Grünberger Spätlese and Grünberger Blanc de Blancs are similarly classified. That in terms of the National Liquor Survey, 1977, high price wines constituted B 10,7 per cent of the total of unfortified wines sold in this country and high priced white wines constituted 7,8 per cent. Of that total of the high priced white wines, Grünberger Stein comprised 16,6 per cent of sales, Grünberger Blanc de Blancs 0,6 per cent of sales and Grünberger Spätlese, 0,2 per cent of sales, a total of 17,4 per cent of all high priced unfortified white wines sold.

C That Grünberger wines have been and are being sold and offered for sale in the aforesaid bottles in liquor retail stores throughout the country, there being at least 2 300 retail liquor outlets of which at least 50 per cent sell liquor on a self-service basis, and account for more than 50 per cent of the liquor sales in this country.

D That purchases made in liquor stores are made entirely on the appearance of the goods and not by word of mouth.

That, as a result of the aforesaid sales and advertising of Grünberger wines, the bottle has become widely known to the trade and the wine drinking public of South Africa as indicative of wine emanating from applicant and its predecessor in title, and the reputation enjoyed by the E bottle is such that a considerable proportion of purchasers of applicant's wine identify and select it by virtue of the shape of the bottle in which it is contained. (In support of the aforegoing applicant annexed an affidavit of Moira Noelle Wegner - marked M - of a wine recognition survey from which it appears that of a total of 609 persons interviewed, 88 per F cent associated the aforesaid bottle with Grünberger Stein wine, and of the 84 per cent of the interviewers who bought Grünberger Stein, 67 per cent chose it by virtue of the shape of the bottle.)

That during February 1978 the applicant became aware that respondent had commenced selling and offering for sale in South Africa white wine in a G green bottle identical to that in which Grünberger wines were sold. This wine called Delheim Gewürztraminer retailed at approximately R2,30 per bottle.

That, although respondent has been producing and selling wines for many years in this country, it has never previously employed a bottle of this or similar shape.

H That the label used by the respondent on the bottle in question is relatively devoid of strong distinguishing features and is furthermore of a shape and colour not markedly dissimilar from those used by applicant.

That the resemblance between the get-up being used by respondent so nearly resembles that used by the applicant that it is likely to deceive reasonable purchasers into the belief that the respondent's wine in the get-up in question is that of, or connected in the course of trade with the applicant.

That the probability of deception is heightened by the fact that the

Van Heerden J

respondent has chosen to launch its new wine in this get-up at a time when applicant is in the process of strenuously promoting its own new Blanc de Blancs products in a similar get-up.

A That respondent's Gewürztraminer wine is in the same price range as the wine of applicant and is being marketed through the same channels, in particular it is being offered for sale in self-service outlets in which the applicant's Grünberger wines are also being offered for sale.

That in the light of the reputation enjoyed by the applicant in the bottle B shape in question it is virtually inevitable that members of the public will be confused by the presentation of the respondent's wine in an identical bottle and that such differences in get-up as do exist will be insufficient to negate this probability of deception.

That, on becoming aware of respondent's aforesaid conduct, applicant on 24 C February 1978 by letter called upon respondent to cease all use of the offending bottle in connection with the sale of wines but respondent was not prepared to comply with applicant's demands.

That applicant will suffer irreparable damages unless respondent is prevented from continuing with its conduct.

In opposing the aforesaid application the respondent averred:

D That Delheim wines produced on the farm "Driesprong", situated on, and forming part of the internationally famous Wine Route, have an excellent reputation for quality, and that the name Delheim is well established and well known in the liquor industry and trade and also to the public as signifying the respondent's products as distinct from those of other producers including applicant and all of its related companies.

E That Gewürztraminer is a rare type of white wine produced in France and Germany and only in limited quantities in South Africa from a grape variety of that name, the product being distinguishable from other wines by its flavour and bouquet.

That during 1971 Delheim Gewürztraminer was first produced on "Driesprong" F and thereafter production increased from approximately 800 bottles in 1971 to approximately 6 000 bottles in 1978. In 1972, 1974 and 1975 the wine was not produced as the Gewürztraminer grape crops of those years did not fulfil requirements.

That all of the Delheim Gewürztraminer produced at "Driesprong" has...