Dr Sean Gomes CEO Wellness Warehouse Head Office
50 Kloof Street PO Box 3644 Cape Town 8000
By fax and email: 021 487 5455 and sean[at]wellnesswarehouse.com

Dear Dr. Gomes

WELLNESS WAREHOUSE VIOLATES THE MERCHANDISE MARKS ACT (17 OF 1941) AS AMENDED: URGENT REQUEST FOR RESPONSE BEFORE OR ON 02 OCTOBER 2010

Thank you for your reply (23 August 2010). In your letter you stated:

If a product is deemed to be contravening any law and this is confirmed and sanctioned by the South African trade authorities and government, we shall then take the necessary action at that time.

We have forwarded your request to the local importer of Ahava and await further information from them on the matter.

We now provide you with the final opportunity to “take the necessary action”. Even though the onus lies with your company to know and apply the law as it pertains to retailers, at your invitation, Open Shuhada Street members have carefully studied South African and international law on product labeling. In our view the label of origin on Ahava products are unlawful in terms of section 7 of the Merchandise Marks Act (Act 17 of 1941 as amended). For the following reasons, we urge you to immediately announce that you will not stock Ahava products in future.

1. The Israeli settlement where Ahava is produced is illegal. For convenience, we cite our initial letter on the unlawful nature of Israeli settlements, settlers and their products.

Ahava products are manufactured by Dead Sea Laboratories, a privately held Israeli cosmetics company using minerals and mud from the Dead Sea. Their main factory is located in the Israeli settlement of Mitzpe Shalem in the Occupied West Bank. Ahava products are labeled as of “Israeli origin,” but according to international law, including UN Security Council resolutions, the West Bank cannot be considered to be part of the State of Israel.

Ahava”s factory appropriates the water and land resources of the OPT and operates without license from the Palestinian Authority “and thus it exploits natural resources from the OPT, for profit.

International law, including the Fourth Geneva Convention, forbids an occupying power from utilizing the natural resources of the occupied territory for its own benefit. In February 2010, the European Court of Justice (ECJ) ruled that products from the OPT cannot carry the label “Israeli origin”. The ECJ held that products obtained from the OPT did not qualify for preferential treatment under European Union and Israeli trade agreements.

2. South African law is clear and explicit about product labeling and the duties of importers, distributors, wholesalers and other service providers. The Merchandise Marks Act (MMA) states explicitly:

Any person who sells or lets or offers for sale or hire any goods to which any false trade description is applied, or in relation to which a trade mark has been altered in any manner, shall be guilty of an offence, if-

(a) at the time of the commission of the alleged offence, the person knew or had reason to suspect that the trade description was not genuine or that the trade mark had been altered; or

(b) the person did not take all reasonable steps in order to avoid the commission of the alleged offence. (note 1) Emphasis added.

3. The definition of “trade description” reads in part “any description, statement or other indication, direct or indirect, as to … the name of the manufacturer or producer or as to the place or country in which any goods were made or produced”2. (emphasis added)

4. According to section 20 of the MMA, the penalty for a first conviction for applying a false trade description may not exceed “R5 000 for each article to which the offence relates or to imprisonment for a period not exceeding three years or to both such fine and imprisonment”. In any other case the fine climbs to R10 000 per article and a maximum five-year prison sentence or both.

5. On 28 September 2010, Open Shuhada Street members purchased Ahava”s Mandarin Cedarwood “Pure Mask” from the Wellness Warehouse Store in Cavendish Square Claremont for R345.00.

6. Among other claims, the trade description of Ahava”s Mandarin Cedarwood “Pure Mask” states explicitly: “Made by Dead Sea Laboratories Ltd. Dead Sea. Israel.”

7. In our view, this is a false trade description “as to the place or country in which any goods were made or produced”.

8. The location of the Ahava factory and visitor center is undisputed. The CEO of Dead Sea Laboratories Ltd., Y. Ellis, stated in a recent letter that “Ahava”s manufacturing facility is located at Kibbutz Mitzpe Shalem, on the North-Western shore of the Dead Sea, just 6 miles north of the “Green Line”, within the area usually referred as the West Bank.”(note 3) According to Article 49 of the Fourth Geneva Convention, UN Security Council Resolutions 446, 452 and 465, and a 2004 opinion of the International Court of Justice, Mitzpe Shalem is an illegal settlement.

9. The receipt for the Ahava”s Mandarin Cedarwood “Pure Mask” – number CO431918 – is in our possession. It will be submitted with an affidavit to the South African Police, the South African Revenue Services and the Department of Trade and Industry for the investigation of an offence.

10. We will be protesting at Wellness Warehouse Cavendish Square and will be laying charges with the police on Saturday 02 October 2010. However, we ask you one last time to desist from selling Ahava Products or to change the label to read – “Israeli settler products made in Occupied Palestinian Territory”.

11. Open Shuhada Street welcomes the fact that you have alerted the importer and we assume this to be SDV Pharmaceuticals. However, we cannot accept your implied self-absolution in the following statement from your letter:

Wellness Warehouse is one of a number of retailers, health shops and spas in South Africa that stock Ahava products. Wellness Warehouse is not the importer, but purchases Ahava from a local importer.

You are responsible for misleading customers and for selling a product with a false trade description irrespective of who else facilitates this prohibited practice.

We look forward to receiving your positive response in person at your Cavendish branch at 12h00, Saturday 02 October 2010.

Yours faithfully The Open Shuhada Street steering committee,

Nathan Geffen, Zackie Achmat, Nabeelah Martin, Daniel Mackintosh, Doron Isaacs, Ilan Strauss

Notes:
1 See MMA section 7
2 See MMA section 1
3 Yaakov Ellis” letter is available here See maps of Mitzpe Shalem here and here.