QUESTION 3

Section 29 of the Consumer Protection Act of 2008 provides that: A producer, importer, distributor, retailer or service provider must not market any goods or services

(a) In a manner that is reasonably likely to imply a false or misleading representation concerning those goods or services, as contemplated in section 41;

or (b) In a manner that is misleading, fraudulent or deceptive in any way, including in respect of

i. The nature, properties, advantages or uses of the goods or services;

ii. The manner in or conditions on which those goods or services may be supplied;

iii. The price at which the goods may be supplied, or the existence of, or relationship of the price to, any previous price or competitor's price for comparable or similar goods or services;

iv. The sponsoring of any event;

or v. Any other material aspect of the goods or services

Perco and Lorel are rival producers of coffee products. Lorel markets a blended coffee under the name Goue Medalje. The product is sold in a package bearing a large picture of a windmill and a pair of Dutch clogs. (Local consumers generally perceive imported Dutch coffee to be of better quality than its locally produced equivalent.) Perco lodges a complaint with the National Consumer Commission and alleges that Lorel is falsely representing to the public that its product is produced in Holland. The National Consumer Commission's investigation reveals that the product in question is made from coffee beans grown in Mpumalanga and is produced and packed at Lorel's factory in Johannesburg. The National Consumer Commission then concludes that Lorel's conduct is in contravention of the Consumer Protection Act.

3.1 Can Perco institute an action for unlawful competition against Lorel merely because Lorel's conduct is contravening a statutory provision, namely section 29 of the Consumer Protection Act? Discuss fully, with reference to relevant case law. Further, discuss what relief a court may grant should Perco's action be successful. (10)

3.2 Read Du toitskloof - KWV - 2090 case and discuss whether the complaint could be addressed in terms of the Trademarks Act 194 of 1993 as amended by focusing only on relevant provisions. In addition, discuss whether the standard of the Advertising Regulatory Board's Code of Advertising Practice is lower when compared with the requirements in terms of the Trademarks Act 194 of 1993. (10)