Seaharvest Corporation (Pty) Ltd v Irvin & Johnson Ltd

• Jurisdiction: South Africa
• Judge: Aaron AJ
• Judgment Date: 18 December 1984
• Hearing Date: 13 December 1984
• Court: Cape Provincial Division

Aaron AJ:

The parties to these proceedings are the two leading producers and distributors in South Africa of frozen fish C products. They have been in direct competition with one another for close to 18 years. Each has its own brand name and mark under which it packages its product: in the case of applicant, it is the name "Sea Harvest" which appears as part of a logo in a box under a stylised representation of a fish, while in the case of respondent, the letters "I & J" appear in D large print in a prominent logo that features in more than one position on the packets.

It is common cause that the words "steaks", "loins" and "cutlets" are words which are not uncommonly used in the fishing industry to describe specific cuts of fish, and that the word "fillet" is commonly used to denote a deheaded deboned E whole fish. These terms have been in general use for some time in relation to larger species of fish, such as tuna or game fish, but in recent years the terms have also been used in this country in relation to cuts of hake and kingklip. Applicant is the first company in this country to have used these phrases in relation to the smaller species of fish, having been the first F to market specific cuts of fish, as "hake loins" and "hake steaks".

In February 1983 applicant changed its advertising agents and decided to embark upon a new advertising campaign to bring home to consumers what it claimed to be the superior quality of its products. The founding affidavit filed by applicant was made by G its general manager, one Penzhorn. He stated that after detailed market research and a thorough evaluation of the results thereof, applicant decided to utilise the existing range of hake products as the vehicle for this new campaign, and to concentrate on the statement "only the best cuts of prime fish are selected". With this was to go what is described H by Mr Penzhorn as a "snappy phrase," viz "prime cuts of fish".

An advertising campaign was then devised for applicant and duly launched during July 1983. It embraced advertisements on television, on the radio, in trade magazines and in various items of point-of-sale display material and bunting. The "copy platform" accepted for the campaign was "The prime cuts. So I fresh they smack of the sea". Mr Penzhorn states that, although the phrase "prime cut" is well known when used in relation to meat, he was not aware of the phrase ever being used before, anywhere in the world, in relation to fish. Respondent contested this and produced evidence that the phrase had indeed been used, albeit not extensively, in the United States of America and Canada. It is, however, undisputed that, until applicant did so, the words "prime cuts" had not been J used in this country in relation to fish.

Aaron AJ

Despite the extensive use of the phrase "prime cuts" in A applicant's advertising campaign, its products continued to be marketed in packages bearing the "Sea Harvest" name and mark. The words "prime cuts" do appear on the packages, but only in small print in descriptive phrases such as "completely boneless prime cuts of natural hake"; "completely boneless, tasty (or B 'juicy') prime cuts"; or "boneless skinless hake prime cuts". On the back of the packages used for some of the products, there also appears a "Sea Harvest Quality Promise" which contains the following words in small print:

"We have committed ourselves to giving you a product of superior quality. The prime grade kingklip loin cuts that we use are the finest produced, that's why we call them the prime C cuts... "

Mr Penzhorn stated that from July to December 1983 an amount of R383 684 was spent on applicant's advertising campaign. He claims that the campaign was extremely successful. During 1984 two new products were launched and from January to September of that year applicant's overall market share in frozen fish D products improved from 33,1% to 44,7%. It is stated that the advertising campaign became known as "the prime cut campaign", and that applicant's range of products was advertised in magazines distributed to or purchased by the retail trade as "the prime cut range". Applicant intends to continue the campaign in the coming year, and has already committed itself E to considerable expenditure in connection therewith.

The main opposing affidavit filed by respondent was deposed to by its group marketing manager, one Gordon. He admitted that as part of his duties he kept abreast of developments in the market place, and monitored...