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Nivea lawyer faces probe over 'attempt to mislead' judges in Connie case

20 March 2021 - 09:51 By dave chambers
The Supreme Court of Appeal has agreed with the high court that a men's shower gel produced by Connie Ferguson's Koni Multinational Brands is confusingly similar to Nivea's. File photo.
The Supreme Court of Appeal has agreed with the high court that a men's shower gel produced by Connie Ferguson's Koni Multinational Brands is confusingly similar to Nivea's. File photo.
Image: Thulani Mbele

A senior partner at a leading SA law firm has scored a victory for Nivea in its battle with actress Connie Ferguson's beauty products company.

But now Gérard du Plessis faces a fight of his own after the Supreme Court of Appeal reported him to the Legal Practice Council for allegedly attempting to mislead five judges.

Gérard du Plessis
Gérard du Plessis
Image: Adams & Adams

Du Plessis, who was chair of Adams & Adams for eight years before being replaced on March 8, submitted an affidavit in support of Nivea's case which purported to be from a member of the public, Elizabeth Serrurier.

She said she bought Connie Bodycare Men Shower Gel after being confused by its close similarities to the Nivea product she intended to buy.

But an appeal court judge asked Nivea's senior counsel, Reinard Michau, if Serrurier worked for his instructing attorneys.

“After taking instructions, counsel confirmed that at the relevant time, Ms Serrurier had been employed by [Nivea's] attorneys. He then rightly requested that her evidence be ignored,” said Friday's appeal judgment penned by Judge Ashton Schippers.

Ferguson's lawyers argued this was a “serious and material non-disclosure” on the part of Adams & Adams, said Schippers, who pointed out that Serrurier's status as an employee of the law firm was also not disclosed when Nivea won its case against the actress's company‚ Koni International Brands, in the Johannesburg high court in 2019.

“It took into account her affidavit and referred to her as ‘a consumer’ in arriving at the conclusion that [Koni's] get-up exhibited signs of straining every nerve to evoke [Nivea's] product in the minds of consumers,” said Schippers.

“Attorneys are required to discharge their professional duties with integrity, probity and complete trustworthiness. The failure by Mr Du Plessis to disclose to the high court and this court the fact that Ms Serrurier was employed by [Nivea's] attorneys, prima facie, falls below these standards.

“So too, the non-disclosure by Ms Serrurier, even though she was not acting in a professional capacity when she purchased the Connie Men shower gel.”

In his dissenting judgment, Judge Tati Makgoka said Nivea's manufacturer, the German multinational Beiersdorf, “knew very well that had it disclosed Ms Serrurier’s true identity, her evidence would have carried little, if any weight at all”.

Makgoka added: “In the absence of any explanation, an irresistible inference must be that this was a conscious effort to mislead the court.

“By reason of her association with Beiersdorf’s attorneys, Ms Serrurier was not truly within the class of ordinary consumers. It follows that her evidence must be discarded.”

The judgments are being sent to the Legal Practice Council so it can “investigate the circumstances in which [Nivea's] attorneys, Mr Gérard du Plessis and Ms Elizabeth Serrurier, failed to disclose Ms Serrurier’s association with [Nivea's] attorneys to the [Johannesburg high court] and this court, when filing an affidavit by her as a member of the public, and to take whatever steps it deems appropriate”.

According to the Adams & Adams website, Du Plessis specialises in litigation relating to trade marks, copyright, unlawful competition, domain names and advertising law.

“He is responsible for the trade mark portfolios of many multinationals and SA companies in Africa and throughout the world. Some of his key clients include Comair Limited, Sasol Limited, Yum! Brands, Sars and Beiersdorf,” it says.

“He is regularly quoted in local publications and interviewed on radio regarding intellectual property (IP) developments, both in SA and throughout Africa.

“He is a co-author of the Lexis Nexis publication Practitioner’s Guide to Intellectual Property Law. He lectures on IP to LLM students at the Adams & Adams IP Centre at the University of Pretoria. He has been practising in the field of intellectual property law since 1995.”

Dealing with the row between Nivea and Koni, four of the five appeal judges who heard the case found in favour of Beiersdorf, which argued that the company launched by Ferguson and her business partner, Groovin Nchabeleng, was passing off some of its products as Nivea’s.

Connie Ferguson's image appears on Connie Women products.
Connie Ferguson's image appears on Connie Women products.
Image: conniebodycare.co.za

In her 2019 judgment, Judge Denise Fisher ordered Koni to change the packaging of its Connie Bodycare Men Shower Gel and do everything in its power to delete images of the copycat product from signage‚ websites and social media platforms.

Even though there were “manifest differences” in the details of the Connie and Nivea packaging‚ the potential for confusion remained‚ Fisher said, adding: “A shower gel is of the nature of products that are often the subject of an impulse buy‚ which ... has the effect that the chances of error are enhanced.

“In grabbing at a relatively small purchase‚ a consumer would be less likely to be overly exacting or discerning in relation to brand‚ and more likely to succumb to immediate impressions.”

Beiersdorf said Nivea’s blue-and-white livery had been used since 1925. In 2008‚ it added silver to Nivea Men packaging.

When the Connie brand launched its men’s range in 2015‚ it chose blue‚ silver‚ yellow and white for packaging.

Ferguson and Nchabeleng said their market research found “men rotated more towards the colour blue and that blue is furthermore regarded as a universal colour for men”. They accused Beiersdorf of bullying.

But the appeal court majority judgment said there was an “inescapable inference” that the Connie logo was an appropriation of the Nivea version.

“This is buttressed by the fact that the appellant’s logo on its Connie Men shower gel is strikingly different from its logo used on the Connie Women brand, which bears a picture of Ms Constance Ferguson,” said Schippers.

“Further, and unlike the Connie Women brand, there is nothing on the Connie Men range that indicates any association with Ms Constance Ferguson. On the facts, the Connie Men shower gel and [Nivea's] goods confusingly resemble each other.”