We've written about unlawful competition quite a bit of
late. That's because there have been quite a few South African
judgments dealing with the topic. There is, of course, a strong
link between unlawful competition and intellectual property, and
one reason for this is that in South Africa, passing-off is
considered a form of unlawful competition. But, as a recent Supreme
Court of Appeal judgment shows, unlawful competition extends well
beyond passing-off. Unlawful competition can, for example, also
result from misrepresenting the nature or make-up of the products
being offered for sale, as well as trading in contravention of a
statute.
The case is Milestone Beverage CC and Others v The
Scotch Whisky Association and Others. The Scotch Whisky
Association ("SWA") has been around in
one form or another since 1912, and its purpose is to protect and
promote the interests of the Scotch whisky trade. We think it's
fair to say that most (but not all) businesses involved in
