Golden Fried Chicken (Pty) Ltd v Soulsa CC (23619/2007) [2009] ZAGPHC 11; 2009 BIP 73 (T) (30 January 2009)

Golden Fried Chicken (Pty) Ltd v Soulsa CC (23619/2007) [2009] ZAGPHC 11; 2009 BIP 73 (T) (30 January 2009)

The court found that the respondent's use of SOULSA incorporates the whole of the applicant's registered trade mark SOUL, with only the addition of 'SA'. The marks are not identical but have a similar sense and appearance, and the dominant feature is the word SOUL. Allowing for imperfect recollection, SOULSA is deceptively similar to SOUL and likely to cause confusion or deception among customers. The respondent's arguments regarding the common use of SOUL in restaurant names were not substantiated by evidence. The respondent's use is in relation to services for which the applicant's trade mark is registered and is unauthorised. Accordingly, the requirements for infringement under section...

Citation
[2009] ZAGPHC 11
Parties
Applicant: Golden Fried Chicken (Pty) Ltd; Respondent: Soulsa CC
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
30 January 2009
Case Number
23619/2007
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted. The respondent is interdicted from infringing the applicant's trade mark and ordered to remove the mark SOULSA from its restaurant. Costs awarded to the applicant.
Judges
B.R. Southwood
Legal Topics
Trade Mark Infringement, Likelihood of Confusion, Service Marks, Interdict, Removal of Infringing Mark
Intellectual Property Commercial and Corporate Trade Mark Infringement Likelihood of Confusion Service Marks Interdict Removal of Infringing Mark

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Golden Fried Chicken (Pty) Ltd

Applicant

Soulsa CC

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the respondent's use of the mark SOULSA infringes the applicant's registered trade mark SOUL in class 42.
  2. 2 Whether SOULSA so nearly resembles SOUL as to be likely to deceive or cause confusion.
  3. 3 Whether the respondent's use is in relation to services for which the trade mark is registered and is unauthorised.

Ratio Decidendi

The court found that the respondent's use of SOULSA incorporates the whole of the applicant's registered trade mark SOUL, with only the addition of 'SA'. The marks are not identical but have a similar sense and appearance, and the dominant feature is the word SOUL. Allowing for imperfect recollection, SOULSA is deceptively similar to SOUL and likely to cause confusion or deception among customers. The respondent's arguments regarding the common use of SOUL in restaurant names were not substantiated by evidence. The respondent's use is in relation to services for which the applicant's trade mark is registered and is unauthorised. Accordingly, the requirements for infringement under section...

Court Disposition

Application granted. The respondent is interdicted from infringing the applicant's trade mark and ordered to remove the mark SOULSA from its restaurant. Costs awarded to the applicant.

Orders

  • The respondent is interdicted and restrained from infringing the applicant's trade mark registration number 2001/12909 SOUL in class 42 by using the mark or name SOULSA in relation to its restaurant.
  • The respondent is ordered to remove the mark or name SOULSA from the restaurant.