KWV Intellectual Properties (Pty) Limited v Mirco Foods CC (82407/14) [2016] ZAGPPHC 620; 2016 BIP 205 (GP) (8 June 2016)

KWV Intellectual Properties (Pty) Limited v Mirco Foods CC (82407/14) [2016] ZAGPPHC 620; 2016 BIP 205 (GP) (8 June 2016)

The court found that Mirco's CIAO! Stylized marks in classes 32 and 33 are identical or confusingly similar to KWV's CIAO mark in class 33, both covering beverages, and that registration would likely cause confusion or deception among consumers. Mirco's prior registrations in classes 29, 30, and 43 relate to foodstuffs and restaurant services, which are distinct from alcoholic beverages, and do not confer priority or rights to oppose KWV's application in class 33. Mirco does not sell bottled beverages under CIAO, and its rights are confined to food and restaurant services. The court applied the Plascon-Evans rule and found Mirco's opposition unsubstantiated, while KWV demonstrated...

Citation
[2016] ZAGPPHC 620
Parties
Applicant: KWV Intellectual Properties (Pty) Limited; Respondent: Mirco Foods CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 June 2016
Case Number
82407/14
Procedural Posture
Trade Mark Opposition / Judgment on Opposed Trade Mark Registration and Counter Opposition
Outcome
KWV's opposition to Mirco's CIAO! Stylized trade mark applications in classes 32 and 33 is upheld with costs; Mirco's opposition to KWV's CIAO mark in class 33 is dismissed with costs.
Judges
N.M. Mavundla
Legal Topics
Trade Mark Registration, Likelihood of Confusion, Prior Proprietorship, Common Law Rights, Costs Award
Intellectual Property Trade Mark Registration Likelihood of Confusion Prior Proprietorship Common Law Rights Costs Award

Case Brief

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Parties

KWV Intellectual Properties (Pty) Limited

Applicant

Mirco Foods CC

Respondent

Procedural Posture

Trade Mark Opposition / Judgment on Opposed Trade Mark Registration and Counter Opposition

Legal Issues

  1. 1 Whether Mirco Foods CC's CIAO! Stylized trade mark applications in classes 32 and 33 are confusingly similar to KWV's CIAO mark in class 33 and should be refused registration.
  2. 2 Whether Mirco Foods CC's prior registrations in classes 29, 30, and 43 confer priority or rights to oppose KWV's CIAO mark in class 33.
  3. 3 Whether the respective goods and services covered by the parties' marks are sufficiently similar to cause confusion or deception in the market.

Ratio Decidendi

The court found that Mirco's CIAO! Stylized marks in classes 32 and 33 are identical or confusingly similar to KWV's CIAO mark in class 33, both covering beverages, and that registration would likely cause confusion or deception among consumers. Mirco's prior registrations in classes 29, 30, and 43 relate to foodstuffs and restaurant services, which are distinct from alcoholic beverages, and do not confer priority or rights to oppose KWV's application in class 33. Mirco does not sell bottled beverages under CIAO, and its rights are confined to food and restaurant services. The court applied the Plascon-Evans rule and found Mirco's opposition unsubstantiated, while KWV demonstrated...

Court Disposition

KWV's opposition to Mirco's CIAO! Stylized trade mark applications in classes 32 and 33 is upheld with costs; Mirco's opposition to KWV's CIAO mark in class 33 is dismissed with costs.

Orders

  • The opposition by KWV to the registration of Mirco Foods CC's CIAO! Stylized trade marks in classes 32 and 33 (applications no 2012/02533-4) is upheld with costs, including costs of two counsel.
  • The opposition by Mirco Foods CC to the registration of KWV's CIAO trade mark in class 33 (application no 2011/19021) is dismissed with costs, including costs of two counsel.