National Brands Limited v Continental Biscuit Manufacturers (Pty) Ltd (Leave to Appeal) (43416/2020) [2023] ZAGPPHC 1140 (1 September 2023)

National Brands Limited v Continental Biscuit Manufacturers (Pty) Ltd (Leave to Appeal) (43416/2020) [2023] ZAGPPHC 1140 (1 September 2023)

The applicant does not possess a protected right in the biscuit device under section 34(1)(c) of the Trade Marks Act of 1963, as shapes were not registrable as trade marks at the time of registration. The depiction of the biscuit device alongside the registered trade mark, PROVITA, does not confer exclusive rights over the device itself. The respondent's use of a similar biscuit device does not infringe the applicant's trade mark rights nor does it cause confusion. The grounds for leave to appeal do not challenge the core finding of the original judgment. The application for leave to appeal does not meet the requirements of section 17(1) of the Superior Courts Act, as there is no...

Citation
[2023] ZAGPPHC 1140
Parties
Applicant: National Brands Limited; Respondent: Continental Biscuit Manufacturers (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 September 2023
Case Number
43416/2020
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Orders Dated 30 June 2023.
Outcome
Application for leave to appeal dismissed with costs, including costs of senior counsel.
Judges
MPN Mbongwe
Legal Topics
Trade Mark Infringement, Leave to Appeal, Final Interdict, Section 34 Trade Marks Act
Intellectual Property Civil Procedure Trade Mark Infringement Leave to Appeal Final Interdict Section 34 Trade Marks Act

Case Brief

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Parties

National Brands Limited

Applicant

Continental Biscuit Manufacturers (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment and Orders Dated 30 June 2023.

Legal Issues

  1. 1 Whether the applicant has a protected right under section 34(1)(c) of the Trade Marks Act of 1963 in respect of the biscuit device.
  2. 2 Whether the respondent's use of the biscuit device constitutes infringement of the applicant's trade mark rights.
  3. 3 Whether leave to appeal should be granted under section 17(1) of the Superior Courts Act 10 of 2013.

Ratio Decidendi

The applicant does not possess a protected right in the biscuit device under section 34(1)(c) of the Trade Marks Act of 1963, as shapes were not registrable as trade marks at the time of registration. The depiction of the biscuit device alongside the registered trade mark, PROVITA, does not confer exclusive rights over the device itself. The respondent's use of a similar biscuit device does not infringe the applicant's trade mark rights nor does it cause confusion. The grounds for leave to appeal do not challenge the core finding of the original judgment. The application for leave to appeal does not meet the requirements of section 17(1) of the Superior Courts Act, as there is no...

Court Disposition

Application for leave to appeal dismissed with costs, including costs of senior counsel.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs, including the costs of senior counsel.