Eco Bottles, Tupperware Parties And A Score Draw

The case

Late last year, the Supreme Court of Appeal ("SCA") handed down its judgment in the case of Dart Industries Incorporated and Tupperware Southern Africa (Pty) Ltd v Botle Buhle Brands (Pty) Ltd and Companies and Intellectual Property Commission which dealt with issues of trade mark registrability and passing off.

The facts and the law

The company behind the well-known Tupperware brand ("Tupperware Co") has a product called the Eco bottle. Tupperware Co has a trade mark registration for the shape of the Eco bottle, and it claimed that Botle Buhle was infringing this registration by selling a bottle with a similar shape – it sued for both trade mark infringement and passing off. In response, Botle Buhle applied to cancel Tupperware Co's trade mark registration. It raised various grounds: