News / Africa
Zimbabwean in SA court over male sex product dispute
26 Oct 2015 at 20:19hrs | Views
Cape Town - Assisted male sexual performance will be in the spotlight in the Western Cape High Court on Tuesday when two importers of products manufactured in Malaysia tackle each other, Fin24 reported.
The applicants - Infitech Technologies (first respondent) and Herbs Oil & Co, Nkate Hutchison Mosaine, Nozipho Sheila Mosiane and David Jekecha - are seeking an interdict to prevent the respondents from making what it claims to be defamatory statements about them.
The respondents - Herbal Zone (first respondent) and Hakim Herzallah, Molateng Trading & Projects and HS Food Industries - in turn, are asking the court for an interdict preventing the applicants from what it alleges to be unlawful competition in the form of "passing-off".
Passing off is the representation by one person that his business or merchandise is that of another and there is a reasonable likelihood that members of the public may be confused into believing that the business of the one is, or is connected with, that of another.
Herzallah claims he began conducting investigations into the medicinal properties of the root known as Tongat Ali, during 2005.
He also explored the medicinal properties and began manufacturing capsules containing the root in the form of a product that assisted sexual performance and the stimulation of blood flow. Herzallah claims he himself came up with the name Phyto Andro.
Herbal Zone claims that it became the sole importer of this "entirely new" product to the SA market, namely Phyto Andro capsules, into South Africa during 2007.
It claims that at that stage there were no other manufacturers of a product by the name Phyto Andro in South Africa or Malaysia and that Herbal Zone was the sole distributor of that product in South Africa.
For him and for her
In August 2009 Herbal Zone International registered Phyto Andro For Him and Phyto Andor For Her with the Malaysian Drug Control Authority.
Herbal Zone claims that until August 2009 none of the applicants had any dealings with the Phyto Andro product nor with Herbal Zone.
It claims Infitech acquired no rights to distribute the product until the conclusion of an exclusive distribution agreement for SA in January 2010.
Herbal Zone claims by that stage the Phyto Andro product and Herbal Zone's association with that brand was already well established in the South African market and that the Phyto Andro reputation was established during the 2005 to 2009 period as a result of Herbal Zone's efforts.
According to Herbal Zone, Infitech agreed that it would not, during the agreement, distribute or represent any competing product.
In terms of the agreement Infitech had to purchase a minimum of 60 000 capsules per month. According to Herbal Zone they sometimes even ordered more than 100 000 capsules per month.
Infitech, on the other hand, claims that it has acquired some reputation or proprietary interest in the Phyto Andro mark, which it can rely on to compete with Herbal Zone. Herbal Zone claims this is contrary to the terms of the distribution agreement.
Another product
In January 2013 Herbal Zone became aware of a product by the name of Phyto Max that was on the market in SA and informed Infitech thereof.
In about February 2014 Mosiane and his wife (the fourth applicant), acquired Herbs Oil & Co duly, which then made an application for the registration of the trademark Phyto Form.
Herbal Zone claims that in July 2014, without its knowledge and while the distribution agreement was still in force, Herbs Oil brought an application for registration of the marks Phyto Andro and Phyto Andro Condom.
Herbal Zone claims that during the course of the distribution agreement its turnover in respect of Phyto Andro capsules alone ranged between R1.5m and R2.5m per month for itself and considerably more for Infitech, which sold the capsules for a price in excess of R34.00 per capsule.
In August 2014 it came to the attention of Herbal Zone that Infitech was selling capsules, in the same or similar inner packaging as it always had, but in a different outer packaging, which included Infitech's logo. Herbal Zone claims this was done without its permission.
In early 2015 it came to the attention of Herzallah that the applicants were selling Phyto Andro capsules in packaging that was very similar to that which Herbal Zone was using.
Terms of agreement
Herbal Zone claims that when the distribution agreement began in January 2010, Phyto Andro enjoyed an established reputation in the South African market and that before that it had been sold in significant quantities for several years and was always sold in packaging and get up linking it to Herbal Zone.
"The fact that over the course of the distribution agreement Infitech was able to achieve sales of approximately 85 000 capsules per month speaks volumes of the existence of a significant reputation before January 2010," Herbal Zone states in its court papers.
"The fact that Infitech was able to sell 60 000 from the very outset reinforces this. This clearly conveys that there existed a reputation which attached to the business of Herbal Zone before the conclusion of the distribution agreement with Infitech."
Herbal Zone claims it was no mere conduit in the import process and that the Phyto Andro products were from inception imported into South Africa and sold in packaging that contained Herbal Zone's trading name and logo.
The applicants want the court to restrain the respondents from stating to the applicants' customers or the public in general that the applicants' products are harmful or have made patients sick.
The respondents claim that the applicants, however, do not link such an alleged statement to any of the respondents.
Herbal Zone and the other respondents want the court to interdict the applicants from marketing, selling, advertising, promoting or presenting consumable herbal capsules using trademarks, labels or names, including the words Phyto Andro, Phyto Andro for him, Phyto or any other word resembling such words to an extent likely to cause confusion.
It also wants the applicants to be interdicted from marketing or selling the products, which it claims to be a case of "passing off" and from holding out to be the distributor on behalf of Herbal Zone. Herbal Zone and the other respondents want the court to interdict the applicants from what it claims to be competing unlawfully.
The applicants - Infitech Technologies (first respondent) and Herbs Oil & Co, Nkate Hutchison Mosaine, Nozipho Sheila Mosiane and David Jekecha - are seeking an interdict to prevent the respondents from making what it claims to be defamatory statements about them.
The respondents - Herbal Zone (first respondent) and Hakim Herzallah, Molateng Trading & Projects and HS Food Industries - in turn, are asking the court for an interdict preventing the applicants from what it alleges to be unlawful competition in the form of "passing-off".
Passing off is the representation by one person that his business or merchandise is that of another and there is a reasonable likelihood that members of the public may be confused into believing that the business of the one is, or is connected with, that of another.
Herzallah claims he began conducting investigations into the medicinal properties of the root known as Tongat Ali, during 2005.
He also explored the medicinal properties and began manufacturing capsules containing the root in the form of a product that assisted sexual performance and the stimulation of blood flow. Herzallah claims he himself came up with the name Phyto Andro.
Herbal Zone claims that it became the sole importer of this "entirely new" product to the SA market, namely Phyto Andro capsules, into South Africa during 2007.
It claims that at that stage there were no other manufacturers of a product by the name Phyto Andro in South Africa or Malaysia and that Herbal Zone was the sole distributor of that product in South Africa.
For him and for her
In August 2009 Herbal Zone International registered Phyto Andro For Him and Phyto Andor For Her with the Malaysian Drug Control Authority.
Herbal Zone claims that until August 2009 none of the applicants had any dealings with the Phyto Andro product nor with Herbal Zone.
It claims Infitech acquired no rights to distribute the product until the conclusion of an exclusive distribution agreement for SA in January 2010.
Herbal Zone claims by that stage the Phyto Andro product and Herbal Zone's association with that brand was already well established in the South African market and that the Phyto Andro reputation was established during the 2005 to 2009 period as a result of Herbal Zone's efforts.
According to Herbal Zone, Infitech agreed that it would not, during the agreement, distribute or represent any competing product.
In terms of the agreement Infitech had to purchase a minimum of 60 000 capsules per month. According to Herbal Zone they sometimes even ordered more than 100 000 capsules per month.
Infitech, on the other hand, claims that it has acquired some reputation or proprietary interest in the Phyto Andro mark, which it can rely on to compete with Herbal Zone. Herbal Zone claims this is contrary to the terms of the distribution agreement.
Another product
In January 2013 Herbal Zone became aware of a product by the name of Phyto Max that was on the market in SA and informed Infitech thereof.
In about February 2014 Mosiane and his wife (the fourth applicant), acquired Herbs Oil & Co duly, which then made an application for the registration of the trademark Phyto Form.
Herbal Zone claims that in July 2014, without its knowledge and while the distribution agreement was still in force, Herbs Oil brought an application for registration of the marks Phyto Andro and Phyto Andro Condom.
Herbal Zone claims that during the course of the distribution agreement its turnover in respect of Phyto Andro capsules alone ranged between R1.5m and R2.5m per month for itself and considerably more for Infitech, which sold the capsules for a price in excess of R34.00 per capsule.
In August 2014 it came to the attention of Herbal Zone that Infitech was selling capsules, in the same or similar inner packaging as it always had, but in a different outer packaging, which included Infitech's logo. Herbal Zone claims this was done without its permission.
In early 2015 it came to the attention of Herzallah that the applicants were selling Phyto Andro capsules in packaging that was very similar to that which Herbal Zone was using.
Terms of agreement
Herbal Zone claims that when the distribution agreement began in January 2010, Phyto Andro enjoyed an established reputation in the South African market and that before that it had been sold in significant quantities for several years and was always sold in packaging and get up linking it to Herbal Zone.
"The fact that over the course of the distribution agreement Infitech was able to achieve sales of approximately 85 000 capsules per month speaks volumes of the existence of a significant reputation before January 2010," Herbal Zone states in its court papers.
"The fact that Infitech was able to sell 60 000 from the very outset reinforces this. This clearly conveys that there existed a reputation which attached to the business of Herbal Zone before the conclusion of the distribution agreement with Infitech."
Herbal Zone claims it was no mere conduit in the import process and that the Phyto Andro products were from inception imported into South Africa and sold in packaging that contained Herbal Zone's trading name and logo.
The applicants want the court to restrain the respondents from stating to the applicants' customers or the public in general that the applicants' products are harmful or have made patients sick.
The respondents claim that the applicants, however, do not link such an alleged statement to any of the respondents.
Herbal Zone and the other respondents want the court to interdict the applicants from marketing, selling, advertising, promoting or presenting consumable herbal capsules using trademarks, labels or names, including the words Phyto Andro, Phyto Andro for him, Phyto or any other word resembling such words to an extent likely to cause confusion.
It also wants the applicants to be interdicted from marketing or selling the products, which it claims to be a case of "passing off" and from holding out to be the distributor on behalf of Herbal Zone. Herbal Zone and the other respondents want the court to interdict the applicants from what it claims to be competing unlawfully.
Source - fin24
