THE RATIO. One judgment, decoded twice: once for anyone, once for the profession.

Case Details

  • Citation: Bliss Brands (Pty) Ltd v Colgate-Palmolive (Pty) Ltd and Others (Case no: 1498/2024); Colgate-Palmolive Company and Another v Bliss Brands (Pty) Ltd (Case no: 79/2025) [2026] ZASCA 106
  • Court: Supreme Court of Appeal of South Africa
  • Heard: 30 March 2026
  • Delivered: 12 August 2026 (handed down electronically)
  • On appeal from: Gauteng Division of the High Court, Johannesburg: Vally J (order dated 11 October 2024) and Manoim J (order dated 13 December 2024), both in case 095598/2024; the cross-appeal arises from the same Manoim J order of 13 December 2024
  • Bench: Molemela P, Goosen JA, Baartman JA, Steyn AJA (author), and Kganyago AJA
  • Representation: For Bliss Brands, C Puckrin SC with C D A Loxton SC, I Learmoth, and E Mosito, instructed by Eversheds Sutherland (SA) Inc and Honey Attorneys; for Colgate, G Marcus SC with R Michau SC, L Harilal, and C McConnachie, instructed by Edward Nathan Sonnenbergs Inc and Phatshoane Henney
  • Governing framework: Code of Advertising Practice of the Advertising Regulatory Board NPC; the common law of civil contempt; s 18(3) of the Superior Courts Act 10 of 2013
  • Key precedents applied: Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others [2021] ZACC 18; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; Initiative Promotions and Designs CC v Initiative Media South Africa (Pty) Ltd 2005 BIP 516 (D); Bliss Brands (Pty) Ltd v Advertising Regulatory Board NPC and Others [2023] ZACC 19; Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd [2022] ZASCA 51; Milestone Beverage CC v The Scotch Whisky Association [2020] ZASCA 105
  • Prior instances: ARB Directorate dismissed Colgate’s complaint (Jan 2020); Advertising Appeals Committee found a breach and ordered withdrawal (Apr 2020); Final Appeal Committee confirmed that order (Aug 2020); this Court and later the Constitutional Court confirmed the ARB had jurisdiction over Bliss Brands (2022 and 2023); Manoim J ordered compliance within three months (Feb 2024); Vally J found contempt over the May 2024 repackaging (Oct 2024); Manoim J found a continuing breach over the October 2024 repackaging but limited the order to ARB member media (Dec 2024); a full court upheld an interim enforcement order pending this appeal (Feb 2025)
  • Key paragraphs: [11]-[13] (contempt of court principles), [17]-[22] (evidentiary burden and the finding of wilful contempt), [23]-[26] (which version of the packaging is the correct comparator), [28]-[30] (cross-appeal on the scope of the enforcement order)
  • Outcome: Both appeals dismissed with costs of two counsel; cross-appeal upheld with costs of two counsel; the December 2024 order widened to require withdrawal of the offending packaging from every medium, not only media over which the ARB has jurisdiction

Headnote

Two soap companies, Colgate, which makes Protex, and Bliss Brands, which makes Securex, have been fighting for six years over whether Bliss Brands’ packaging too closely resembles Colgate’s. After losing before an advertising self-regulator and being ordered to change its packaging, Bliss Brands made only cosmetic tweaks, twice, while also continuing to advertise the old packaging on some of its own websites. The Supreme Court of Appeal found Bliss Brands in contempt of the enforcement order, rejected its argument that the wrong version of the packaging had been used for comparison, and, on a cross-appeal by Colgate, widened the compliance order so it applies across every platform where the packaging appears, rather than only platforms belonging to the regulator’s own members.

Factual Background

Colgate is the market leader in South Africa’s germ protection soap category, with roughly a third of the market, built substantially on the reputation of its Protex brand. Bliss Brands entered the same category in 2011 with its Securex brand and changed the Securex packaging in 2018. In 2019, Colgate complained to the Advertising Regulatory Board that the new Securex packaging imitated the architecture of Protex’s packaging and improperly traded on Protex’s goodwill, in breach of the ARB’s Code of Advertising Practice. Bliss Brands was not an ARB member and was told it did not have to respond to the complaint, but it chose to participate in the process anyway.

The ARB’s Directorate initially dismissed the complaint, but the Advertising Appeals Committee found a breach of the Code in April 2020 and ordered Bliss Brands to withdraw its packaging, a ruling the Final Appeal Committee, chaired by retired Judge President Ngoepe, confirmed later that year. Bliss Brands’ attempts to resist the ARB’s authority over a non-member reached this Court in 2022 and the Constitutional Court in 2023; both confirmed that Bliss Brands, by choosing to take part in the ARB process rather than decline it, had submitted to the ARB’s jurisdiction, and the Constitutional Court endorsed the factual finding that the packaging breached the Code.

In February 2024, Manoim J ordered Bliss Brands to comply with the Final Appeal Committee’s decision within three months by changing its packaging, without requiring stock already on shelves to be pulled. Bliss Brands introduced a modified version in May 2024, with changes limited to a lighter shade of blue, italicised lettering, two small diagonal stripes, two amended product variant names, and repositioned label elements. Colgate applied to have Bliss Brands held in contempt, and Vally J found in October 2024 that these changes were not significant, that the two packaging designs were difficult to tell apart except on close inspection, and that Bliss Brands had continued advertising the old packaging on some websites without showing that its efforts to remove it had actually succeeded. When Bliss Brands then released a further modified version in October 2024, Colgate brought a second contempt application, again before Manoim J, who found in December 2024 that the new version was also a continuing breach, but limited the resulting enforcement order to media outlets over which the ARB has jurisdiction by virtue of membership rather than to all media generally.

Both sides obtained leave to appeal, Bliss Brands against the finding of breach and Colgate by cross-appeal against the media limitation in the December 2024 order. Colgate also secured an interim enforcement order under s 18(3) of the Superior Courts Act, which a full court upheld in February 2025 pending this appeal. The consolidated appeals and the cross-appeal then came before the Supreme Court of Appeal.

The Question for Determination

In plain terms, the Court had to decide whether Bliss Brands actually did enough to comply with an order requiring it to stop using packaging that looked too much like a rival’s, or whether it simply tweaked a few surface details while leaving the packaging essentially the same, and whether a company that voluntarily submits to a private industry regulator’s process can later argue that the resulting enforcement order should only bind it on platforms the regulator formally controls.

Framed precisely, the issues were whether Bliss Brands discharged its evidentiary burden to rebut the presumption of wilfulness and mala fides that arose once a breach of the Manoim J order of February 2024 was established; whether the correct comparator for assessing each successive version of the Securex packaging was the original 2019 offending packaging, as every forum below had used, rather than the immediately preceding version; whether the October 2024 packaging represented a further continuing breach of the same order; and, on Colgate’s cross-appeal, whether an enforcement order against a non-member who has submitted to the ARB’s jurisdiction should be confined to media over which the ARB has jurisdiction by virtue of membership, or should extend to every medium in which the offending packaging appears.

The Court’s Reasoning

The Court began from the constitutional foundations of contempt of court, quoting the Constitutional Court’s account in Zuma of why disobedience to court orders threatens the rule of law and the authority of the judiciary. It then applied the settled elements from Fakie: an order must exist, the alleged contemnor must know of it, and there must be non-compliance. Once those three elements are shown, wilfulness and mala fides are presumed, and the burden shifts to the alleged contemnor to raise a reasonable doubt about its own state of mind.

Applying that framework to the May 2024 packaging, the Court agreed with Vally J’s itemised list of what had actually changed: a lighter shade of blue, italicised text, two diagonal stripes, two renamed variants, and repositioned label elements. None of this, in the Court’s assessment, amounted to a material change. Bliss Brands relied on Initiative Promotions, where a genuine, evidenced attempt to comply was found to negate wilfulness even though it was not clear the attempt had actually succeeded. The Court distinguished that case on the facts: unlike the respondent there, Bliss Brands placed no affidavit evidence before Vally J of the steps or instructions it had given to bring its packaging into compliance, only producing images of the new design through its heads of argument, and it conceded that the old packaging remained visible on some of its own websites without showing that its removal efforts had actually worked. On that combination, the Court held Bliss Brands had failed to rebut the presumption, and found its non-compliance wilful and mala fide, reinforced by the delay involved and by the continued use of the old packaging.

On the comparison methodology, Bliss Brands argued that later versions of its packaging should have been measured against the immediately preceding Securex design rather than the original 2019 offending packaging. The Court rejected this, noting that the ARB, the Advertising Appeals Committee, the Final Appeal Committee, and the reviewing courts had all consistently compared successive Securex versions against that same original packaging, that Bliss Brands had not appealed the dismissal of its review of that finding, and that the finding was accordingly final. The Court also noted, without deciding the point either way, that this was not a passing off or intellectual property case; it arose entirely from a breach of the ARB’s Code and the ARB’s jurisdiction. Applying the same original packaging as the fixed reference point, the Court found no misdirection in Manoim J’s later conclusion that the October 2024 packaging was a further, continuing breach involving only minor tweaks.

On Colgate’s cross-appeal, the Court held that Manoim J had been wrong to confine the December 2024 enforcement order to media over which the ARB has jurisdiction by virtue of membership. It relied on the Constitutional Court’s earlier ruling that submission to the ARB’s jurisdiction has a materially different legal effect from non-submission: a non-member that declines jurisdiction can only be stopped from using offending packaging on ARB members’ own media, whereas a non-member that submits becomes bound by the ARB’s directions more broadly. Since Bliss Brands had participated in every stage of the ARB process without objection, the Court found no principled basis for the narrower order, upheld the cross-appeal, and substituted a wider order requiring withdrawal of the offending packaging from every medium in which it appears.

Critical Assessment

The cross-appeal reasoning is a clean, well-grounded piece of doctrine. Bliss Brands was told at the outset that it did not have to answer Colgate’s complaint, and chose to participate fully instead. Holding it to the complete legal consequences of that choice, rather than letting it treat ARB adjudication as binding only on the media the ARB itself formally controls, gives real content to the idea that submission to a voluntary regulator’s jurisdiction is a genuine election with genuine consequences, and it follows directly from what the Constitutional Court had already said in the parties’ earlier litigation.

The contempt finding leans heavily on an evidentiary gap: Bliss Brands did not put affidavit evidence of its compliance steps before Vally J, producing only images of the new packaging through its heads of argument. The Court treats that gap as decisive in distinguishing Initiative Promotions, but does not fully separate how much of the wilfulness finding rests on that procedural shortfall as opposed to the substance of the six modest changes actually identified. Both point the same way here, but a reader is left inferring, rather than being shown, how the two would have interacted had Bliss Brands filed a proper compliance affidavit alongside packaging that was just as similar.

The case is also a study in how long and procedurally layered a single packaging dispute can become. Six years, an ARB Directorate ruling, an Advertising Appeals Committee ruling, a Final Appeal Committee ruling, two rounds before the Constitutional Court, an earlier appeal to this Court, three separate High Court orders, an interim enforcement application, a full court appeal, and now a consolidated appeal and cross-appeal, all over the specific shade of blue and stripe placement on a bar of soap. Whatever the merits, that trajectory says something about how costly and slow enforcement remains even once a regulator, an appellate committee, and multiple courts have already reached the same conclusion on the substance.

The judgment is explicit that it is not deciding a passing off or intellectual property case, even though the underlying complaint is, in substance, about one competitor’s packaging trading on another’s goodwill. That distinction matters for how far the case travels. The “compare every new version against the original” methodology applied here is tailored to enforcing an ARB-derived court order on its own facts, not a general test for packaging similarity in unlawful competition law, and practitioners reaching for this judgment outside the advertising self-regulation context should read it narrowly for that reason.

Implications

If you’re not a lawyer: This case is a reminder that being told to stop using packaging that looks too much like a competitor’s is not satisfied by minor cosmetic tweaks. Courts will compare the new version against the original design that was actually found to be a problem, not against whatever the company changed it to most recently, and a company that cannot show it made a genuine, documented effort to comply risks being found in contempt of court, with real costs consequences. It also shows that voluntarily agreeing to go through a private industry watchdog’s process, rather than ignoring it, can end up binding a company’s entire business, not just the parts of it the watchdog directly controls.

For the profession: The judgment restates the Fakie and Zuma framework for civil contempt cleanly, and is a useful reminder that the evidentiary burden on an alleged contemnor is best discharged through affidavit evidence of concrete compliance steps, not photographs of a redesign submitted through heads of argument. It confirms that once a series of fora have used a particular version of a product as the fixed comparator and that finding has become final, later courts enforcing the same order are entitled to keep using it rather than reopening the comparison exercise. On jurisdiction, it reinforces the Constitutional Court’s point that voluntary submission by a non-member to a self-regulatory body’s process carries the full consequences of that body’s directions, not a media-limited subset of them. Practitioners should also note the Court’s own express statement that this was not decided on passing off or intellectual property principles, which limits how far its comparator methodology can be cited outside ARB enforcement disputes.