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 Gérard du Plessis faces a fight of his own after the SCA reported him to the Legal Practice Council for allegedly attempting to mislead five judges.
Du Plessis, who was chair of Adams & Adams for eight years before being replaced on 8 March, 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, according to a TimesLIVE report, a 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 Gauteng High Court (Johannesburg) in 2019. ‘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. 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’.
The judgments are being sent to the Legal Practice Council so it can ‘investigate the circumstances in which attorneys Mr Gérard du Plessis and Ms Elizabeth Serrurier failed to disclose Ms Serrurier’s association with (Nivea's) attorneys to the (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’.
TimesLIVE notes that according to the Adams & Adams website, Du Plessis specialises in litigation relating to trademarks, copyright, unlawful competition, domain names and advertising law. ‘He is responsible for the trademark portfolios of many multinationals and SA companies in Africa and throughout the world,’ it says. 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. The appeal court majority judgment said there was an ‘inescapable inference’ that the Connie logo was an appropriation of the Nivea version, notes TimesLIVE. ‘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.’