Groot Constantia Trust v DGB (Proprietary) Limited (52287/2013) [2015] ZAGPPHC 1086; 2015 BIP 330 (GP) (23 September 2015)

Groot Constantia Trust v DGB (Proprietary) Limited (52287/2013) [2015] ZAGPPHC 1086; 2015 BIP 330 (GP) (23 September 2015)

The court found that the opponent failed to discharge the evidential burden required to establish a reasonable probability of deception or confusion arising from the registration of the mark 'A CAPE ICON SINCE 1685' for Boschendal wines. The mark refers to the founding date of the Boschendal estate, not the commencement of winemaking, and is factually correct. No credible evidence or consumer survey was presented to show that the mark would mislead or confuse the public. The respondent demonstrated bona fide intention to use the mark as a badge of origin, and the opponent did not provide substantial facts to prove mala fides. The objections based on Sections 10(12), 10(13), and 10(4) of...

Citation
[2015] ZAGPPHC 1086
Parties
Applicant: Groot Constantia Trust; Respondent: DGB (Proprietary) Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 September 2015
Case Number
52287/2013
Procedural Posture
Review Application / Opposition to Trade Mark Registration Referred by Registrar Under Section 59(2) of the Trade Marks Act
Outcome
Application opposing registration of the trade mark dismissed with costs. Trade mark registration granted.
Judges
M.G Phatudi
Legal Topics
Trade Mark Registration, Likelihood of Confusion, Deceptive Marks, Bona Fide Intention, Balance of Probabilities
Intellectual Property Trade Mark Registration Likelihood of Confusion Deceptive Marks Bona Fide Intention Balance of Probabilities

Case Brief

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Parties

Groot Constantia Trust

Applicant

DGB (Proprietary) Limited

Respondent

Procedural Posture

Review Application / Opposition to Trade Mark Registration Referred by Registrar Under Section 59(2) of the Trade Marks Act

Legal Issues

  1. 1 Whether the trade mark 'A CAPE ICON SINCE 1685' in Class 33 is inherently deceptive or likely to deceive or cause confusion under Section 10(12) and 10(13) of the Trade Marks Act.
  2. 2 Whether the applicant for registration (DGB) has a bona fide intention to use the mark as a trade mark under Section 10(4) of the Act.
  3. 3 Whether the opponent (Groot Constantia Trust) discharged the evidential burden to establish a reasonable probability of deception or confusion.

Ratio Decidendi

The court found that the opponent failed to discharge the evidential burden required to establish a reasonable probability of deception or confusion arising from the registration of the mark 'A CAPE ICON SINCE 1685' for Boschendal wines. The mark refers to the founding date of the Boschendal estate, not the commencement of winemaking, and is factually correct. No credible evidence or consumer survey was presented to show that the mark would mislead or confuse the public. The respondent demonstrated bona fide intention to use the mark as a badge of origin, and the opponent did not provide substantial facts to prove mala fides. The objections based on Sections 10(12), 10(13), and 10(4) of...

Court Disposition

Application opposing registration of the trade mark dismissed with costs. Trade mark registration granted.

Orders

  • The Opponent's application opposing the Trade Mark Applicant's registration 'A CAPE ICON SINCE 1685' is dismissed with costs.
  • The Trade Mark 2008/24795: 'A CAPE ICON SINCE 1685' shall be registered.