Ferguson, Nivea to face off in Appeals Court over colours used in Connie products

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Johannesburg - Actress and businesswoman Connie Ferguson is headed for the Supreme Court of Appeal (SCA) to fight off a stinging judgment that interdicted her from using the colours of Nivea for her body care products. Beiersdorf AG, a German company that manufactures and distributes Nivea, dragged Ferguson’s Koni Multinational Brands to the South Gauteng High Court, Johannesburg, and secured victory last year. The German company proved before Judge Denise Fisher that Koni deliberately used Nivea’s blue, white and silver colour combinations for its body care product named Connie to deceive the average consumer. Beiersdorf went to the high court armed with a sworn affidavit of a consumer who bought the Connie shower gel thinking it was Nivea. The consumer said she realised that she had bought the wrong brand when she inspected it closely at home. It was too late to return Connie to the outlet as her husband had already used it.

Beiersdorf argued that the colours Koni adopted for its products launched in 2015 were historically associated with its brands. The German group told the court it had used blue and white since 1925, and added silver in 2008. These were the colour schemes on Connie.

Judge Fisher ruled in Beiersdorf’s favour and interdicted Koni “from competing unlawfully with the applicant by passing off its products as being those of the applicant or as being associated”.

She said while a certain measure of copying is permissible as no one had a monopoly on branding, Koni went out to deceive consumers.

“The composite created from the aspects of the get-ups of (Beiersdorf) over time is deceiving. I cannot find other than that this was calculated for the purposes of passing off the shower gel as belonging to the range of (Beiersdorf).

“The hallmarks of its past get-ups have created impressions and associations which linger in the minds of the consumers.

A Bench of the SCA was scheduled to hear the matter on May 8.

The Star