Golden Fried Chicken (Pty) Ltd v Vlachos and Another (497/2021) [2022] ZASCA 150 (3 November 2022)

Golden Fried Chicken (Pty) Ltd v Vlachos and Another (497/2021) [2022] ZASCA 150 (3 November 2022)

The court held that the appellant failed to establish that the respondents' use of 'Soul Souvlaki' infringed its registered 'Soul' trade mark under section 34(1)(a) of the Trade Marks Act. The marks are not identical; only the word 'Soul' is common to both, while 'Souvlaki' is a significant and distinguishing element. The likelihood of deception or confusion among notional restaurant customers is remote, as the dominant features and overall impression of the marks differ. The court found that the word 'Soul' is a common word and its social meaning further dilutes any likelihood of confusion. The respondents' mark sufficiently distinguishes their services from those of the appellant, and...

Citation
[2022] ZASCA 150
Parties
Appellant: Golden Fried Chicken (Pty) Ltd; Respondent: Dino Vlachos; Respondent: Soul Souvlaki (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 November 2022
Case Number
497/2021
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal dismissed with costs.
Judges
Petse, Makgoka, Gorven, Mabindla-Boqwana, Basson
Legal Topics
Trade Mark Infringement, Likelihood of Confusion, Distinctiveness, Service Marks, Test for Deception, Comparative Analysis of Marks
Intellectual Property Trade Mark Infringement Likelihood of Confusion Distinctiveness Service Marks Test for Deception Comparative Analysis of Marks

Case Brief

Summary, issues, holding and outcome

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Parties

Golden Fried Chicken (Pty) Ltd

Appellant

Dino Vlachos

Respondent

Soul Souvlaki (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the respondents' use of 'Soul Souvlaki' infringes the appellant's registered 'Soul' trade mark under section 34(1)(a) of the Trade Marks Act.
  2. 2 Whether the marks are identical or so nearly resembling as to be likely to deceive or cause confusion.
  3. 3 Whether the word 'Souvlaki' in the respondents' mark sufficiently distinguishes it from the appellant's mark.

Ratio Decidendi

The court held that the appellant failed to establish that the respondents' use of 'Soul Souvlaki' infringed its registered 'Soul' trade mark under section 34(1)(a) of the Trade Marks Act. The marks are not identical; only the word 'Soul' is common to both, while 'Souvlaki' is a significant and distinguishing element. The likelihood of deception or confusion among notional restaurant customers is remote, as the dominant features and overall impression of the marks differ. The court found that the word 'Soul' is a common word and its social meaning further dilutes any likelihood of confusion. The respondents' mark sufficiently distinguishes their services from those of the appellant, and...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.