Standing out in a competitive market and attracting consumers' attention is not easy. To do so, the overall appearance of a product (known as the “get-up”) should be distinctive. The get-up of a product encompasses far more than just a name or logo: it includes colours, packaging, shape, layout, graphics, labels and other distinctive visual features that consumers come to associate with a specific product. Businesses that fail to protect their visual identity risk losing the competitive edge they have worked so hard to build.

Lessons from Recent International Cases

If recent international litigation is anything to go by, the battleground of trade get-up is where brand disputes are won or lost.

Sol de Janeiro v. MCoBeauty (Australia)

[Source: Sol de Janeiro USA, Inc. v. MCoBeauty Pty Ltd et al., Case No. 24-cv-08862 (S.D.N.Y. 2024), Exhibit.]

Beauty brand Sol de Janeiro sued Australian cosmetics company MCoBeauty for allegedly copying the trade dress of its popular CHEIROSA body mist range. The claim centred on the use of the unique shape of the bottle and cap, as well as the product label, including its distinctive combination and arrangement of elements, text, and graphics. MCoBeauty moved to have the matter dismissed in January 2026, contesting whether those cumulative packaging elements are protectable at all. The matter is being closely watched to gauge the extent to which competitors in the beauty sector can legally replicate the overall commercial impression of a rival product’s packaging.

WHOOP v. Lexqi (China)

[Source: Joint Appendix and Complaint Exhibit, WHOOP, Inc. v. Shenzhen Lexqi Electronic Technology Co., Ltd., Case No. 1:25-cv-12690-FDS (D. Mass.)]

Another recent example is the dispute between wearable fitness company WHOOP and Chinese manufacturer Lexqi, where the alleged copying concerned not packaging, but the overall appearance of a wearable fitness tracker. WHOOP sued Lexqi for selling near-identical health trackers on Amazon. WHOOP's claim focused on its distinctive "faceless" band design, a continuous fabric strap with thin metal accents and an unconventional watch face. In February 2026, the court granted a preliminary injunction (interim interdict), finding the Lexqi device "almost identical" and that WHOOP had demonstrated a likelihood of success on trade dress infringement and irreparable harm. This case is significant because it illustrates that even functional products may possess protectable features of trade get-up deserving of legal protection.

Product Get-Up Disputes Closer to Home

These principles are not limited to international markets. A local example demonstrates that disputes over product get-up are already playing out in South Africa. In Shoprite Checkers v Pick n Pay, Checkers successfully challenged the get-up used for Pick n Pay’s CRAFTED COLLECTION products, alleging that it was confusingly similar to the get-up of its FORAGE AND FEAST range.

The court found that Checkers had established a protectable reputation in the get-up of its product range and granted relief restraining the use of confusingly or deceptively similar get-up. The case illustrates that the overall presentation of a product, rather than its name alone, can become commercially distinctive and worthy of protection. It also demonstrates that get-up should be considered as a whole, with the combination of features being central to the court’s assessment.

What Does This Mean for South African Businesses?

South African law provides a solid framework for protecting get-up. Our trade mark legislation enables the registration of trade marks that distinguish the goods or services of one business from those of another. Importantly, this protection can extend beyond traditional names and logos to packaging, shapes, colours and other distinctive visual features, provided they function as an indication of commercial origin.

This is particularly relevant because competitors may seek to imitate a successful product's appearance without copying its name or logo. By adopting similar colours, packaging, layouts or visual features, a competitor can benefit from the reputation and consumer recognition that the original business has spent years building.

Registering the distinctive elements of your product’s get-up as trade marks strengthens your legal position. Registration grants exclusive rights in those marks for the relevant goods or services and provides a firm basis for seeking relief against confusingly similar use.

Act Early and Protect Strategically

Your products’ packaging and overall visual identity constitute valuable intellectual property. In an era where successful products can be copied almost overnight, waiting until imitation occurs may be too late. Once consumers encounter a look-alike product, the goodwill associated with the original get-up starts to dilute.

The prudent approach is to identify the distinctive elements of your product's get-up and secure appropriate trade mark protection before an imitation enters the market. Ideally, this should happen at the product development stage, helping businesses identify what should be protected and avoid potential conflicts with existing brands.

Businesses should also conduct appropriate trade mark and market searches before adopting a new get-up to ensure that they are not infringing on anyone’s rights.

For any business investing heavily in branding, marketing, and product development, get-up should form an important part of its intellectual property strategy.

Written by Thembokuhle Danca, with oversight by Juli Hopf (Partner), Spoor & Fisher