The decision of Union-Swiss (Pty) Ltd v Bio-Cream Cosmetics
and another (North Gauteng High Court, Judge Rabie, 17 July
2015) dealt with two distinct issues; namely, passing off and
rectification of the register. Each, in turn, was closely linked to
this question: to what extent is 'bio' a trade mark?
First, the passing off. The facts were that the company Union
Swiss has for many years been selling an oil that's used for
the treatment of scars and stretch marks. This product is marketed
under the trade mark Bio-Oil. The trade mark has consistently been
used together with what's described in the judgment as a
"Drop Device" with an "irregular edge", as well
as a colour combination of orange and white. Sales have been very
good and advertising has been extensive. The product has won awards
and it's clearly a market leader. The judge said this of the
product: "Market research conducted during 2012 has indicated
it to be the product most recommended by doctors,
