Takis Biltong (Pty) Ltd v Grupo Bimbo S.A.B DE C.V (A393/2018) [2021] ZAGPPHC 837; 2021 BIP 12 (GP); [2021] HIPR 182 (GP) (10 December 2021)

Takis Biltong (Pty) Ltd v Grupo Bimbo S.A.B DE C.V (A393/2018) [2021] ZAGPPHC 837; 2021 BIP 12 (GP); [2021] HIPR 182 (GP) (10 December 2021)

The court found that the respondent's TAKIS FUEGO logo mark is visually, phonetically, and conceptually similar to the appellant's TAKIS marks. The addition of the word FUEGO and the BARCEL logo were deemed insufficient to distinguish the marks in the eyes of the notional consumer. Both parties' products are snack foods sold in similar retail environments, and the likelihood of confusion or deception is high. The appellant demonstrated a substantial reputation in the TAKIS mark, and the relevant statutory requirements for cancellation under sections 10(12), 10(14), 10(16), and 10(17) of the Trade Marks Act were satisfied. The appeal was upheld, and the respondent's trade mark registration...

Citation
[2021] ZAGPPHC 837
Parties
Appellant: Takis Biltong (Pty) Ltd; Respondent: Grupo Bimbo S.A.B. DE C.V
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 December 2021
Case Number
A393/2018
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Application for Cancellation of Trade Mark
Outcome
Appeal upheld; respondent's trade mark registration cancelled; costs awarded to appellant.
Judges
N Davis, B Nemavhidi
Legal Topics
Trade Mark Cancellation, Likelihood of Confusion, Reputation in Trade Mark, Similar Goods, Trade Mark Infringement, Visual and Phonetic Similarity
Intellectual Property Commercial and Corporate Trade Mark Cancellation Likelihood of Confusion Reputation in Trade Mark Similar Goods Trade Mark Infringement Visual and Phonetic Similarity

Case Brief

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Parties

Takis Biltong (Pty) Ltd

Appellant

Grupo Bimbo S.A.B. DE C.V

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Application for Cancellation of Trade Mark

Legal Issues

  1. 1 Whether the respondent's TAKIS FUEGO logo mark is deceptively or confusingly similar to the appellant's TAKIS marks.
  2. 2 Whether the appellant had prior and existing rights that pre-dated the respondent's filing date for its mark.
  3. 3 Whether the appellant had the requisite reputation to sustain a cause of action under sections 10(12), 10(14), 10(16), and 10(17) of the Trade Marks Act.

Ratio Decidendi

The court found that the respondent's TAKIS FUEGO logo mark is visually, phonetically, and conceptually similar to the appellant's TAKIS marks. The addition of the word FUEGO and the BARCEL logo were deemed insufficient to distinguish the marks in the eyes of the notional consumer. Both parties' products are snack foods sold in similar retail environments, and the likelihood of confusion or deception is high. The appellant demonstrated a substantial reputation in the TAKIS mark, and the relevant statutory requirements for cancellation under sections 10(12), 10(14), 10(16), and 10(17) of the Trade Marks Act were satisfied. The appeal was upheld, and the respondent's trade mark registration...

Court Disposition

Appeal upheld; respondent's trade mark registration cancelled; costs awarded to appellant.

Orders

  • The appeal is upheld with costs.
  • Paragraph (a) of the order by the court a quo is set aside and replaced by the following order: