Pretoria – The battle for the word “butter” came under the spotlight in the Gauteng High Court, Pretoria, when dairy giant Clover took on the household brand Stork about the its latest “butter spread”.
Clover, in its urgent application against Siqalo Foods, owners of the Stork brand, is aggrieved about the latest addition to the rival stable – the Stork Butter Spread.
In its advertisement regarding its latest product, Stork said “the cream of butter spreads is here”.
But Clover told the court this was misleading because it was definitely not butter.
According to Clover, this labelling misrepresents that it is pure butter and not a modified butter product. Clover wanted a final order interdicting the owners of Stork from using the word “butter” on the presentation of this spread.
Clover argued that by claiming that this was a form of butter, the respondent contravened the Agricultural Products Act and the regulations relating to the classification, packaging and marketing of dairy products and imitation related products in the country.
Clover argued that the prominent wording “butter” in relation to the spread constituted unlawful competition. It said the matter was urgent because, they argued, the public should not further be misled into thinking it was a form of butter.
Clover wrote a letter of demand to the respondent company in February in which it complained about the wording of the new spread. The respondent, in return, refused to stop using the word butter in relation to their product. Clover subsequently lodged its urgent application. It gave the respondents four days to respond to the legal challenge.
The main gist of the application is that the respondent is selling a medium fat product using the words “Stork butter spread” boldly on its product label, which it said negatively affected Clover’s commercial interests. Clover also argued that none the wiser consumers would be “deceived” or “confused” in thinking that they were buying a butter product if the court did not urgently put its foot down.
Clover said it and other competitors in this field were obliged to comply to all statutory provisions in the production and marketing of their goods. It was argued that Clover was thus entitled to ensure the respondent also adhered to these regulations “as to level the playing field”.
Clover said the respondent should not be allowed to capitalise on “misrepresentation” of its modified butter product and charge a butter price for it. They said it would also be to the benefit of the consumer if the court urgently put a stop to it.
Clover argued that if it had to approach the court on a non-urgent basis, the delay in resolving this dispute would be akin to “closing the gate once the horse has bolted”.
“The consumers would also suffer harm as a result of being misled into buying an unlawful product,” Clover argued.
The respondent argued that there was no basis to find that the matter was urgent.
They argued that according to Clover, they, as well as consumers, would suffer serious and irreparable financial harm should the respondent continue to sell its Stork Butter Spread product, yet Clover did not supply any evidence how the consumers would suffer irreparable harm.
The respondent argued that it had conducted market research on consumer awareness on the differences between “butter” and “modified butter” products and consumers were well aware of the difference, thus they were not being misled.
The respondent also takes issue with the fact that the applicant took six weeks to launch its application, but afforded the respondent only four days to respond. They said this a gross abuse of the urgent court process.
Acting Judge J S Nyathi said Clover made allegations of “reasonable likelihood” of consumers and businesses such as the applicant suffering irreparable harm if the court did not step in urgently. But he said Clover’s real motive for bringing the application was self-serving and this could never be regarded as a reason for an application to be heard on an urgent basis. He struck the matter from the roll due to a lack of urgency and slapped Clover with the legal bill. For now, Stork Butter Spread remains in place.