30 Mar 11 Crumbs, something fishy is going on
It’s the battle of the sea giants as Sea Harvest and I&J faced off again in court recently, fighting over crumbed fish fillets. Sea Harvest’s Oven Crisp product has, according to papers filed in the Cape Town High Court, flown out of supermarket fridges for the last 20 years. But last month the company’s biggest competitor, I&J, launched its Oven Crunch line with packaging similar to that of Oven Crisp.
Before the launch of the I&J product, Sea Harvest, according to Acting Judge Judith Cloete, sent I&J’s lawyers a letter in which it asked that they prevent the new product from hitting the stores.
I&J refused and Sea Harvest launched an urgent application in the high court.
Round one went to Sea Harvest when Judge Cloete ruled that the new Oven Crunch product was “deceptively similar to Sea Harvest’s”.
Both products are packed in a blue box, contain six 400g portions, and the brand name is written in yellow in a similar font.
According to court papers, about 950t, or 2.375million boxes, of Oven Crisp, with a retail value of R51-million, are sold every year.
Sea Harvest cited AC Nielsen figures, which rank it as the frozen-fish market leader with a share of about 46%. I&J has 44% of the market.
“What concerns me greatly is the difficulty which I myself had in remembering which product was that of which competitor,” said Judge Cloete.
“I can easily imagine a conversation between two average consumers along the following lines. A tells B about the tasty frozen fish her family had for dinner the evening before. B asks A what type it was. A tells B that she cannot remember exactly, but it was crumbed, came in a dark blue box with yellow writing at the top and was either Oven Crisp or Oven Crunch. B, on her next trip to the supermarket, will simply not be able to distinguish which packaged fish had been purchased by A.”
Two weeks ago, Cloete “interdicted and restrained” I&J from “unlawfully” competing with Sea Harvest.
But the companies will go to court again on Friday (1 April). I&J has asked for leave to appeal against the judgment. This means Cloete’s judgment is suspended until the appeal is finalised and I&J may continue selling its product.
But Sea Harvest has applied to court for the judgment not to be suspended pending the outcome of the appeal to prevent I&J continuing to benefit from what Sea Harvest maintains is unfair competition.
William Steenkamp, commercial director of I&J, said the two products were distinguishable. “We are of the view that the packaging differences are sufficient and clear enough for a consumer to make an informed purchasing decision. We have applied to the court for leave to appeal against the judgment. Because the matter is before the court, it would be inappropriate to comment further ,” said Steenkamp.