Unilever PLC v Kemtek (Pty) Ltd (48157/13) [2014] ZAGPPHC 361 (12 June 2014)

Unilever PLC v Kemtek (Pty) Ltd (48157/13) [2014] ZAGPPHC 361 (12 June 2014)

The court found that the applicant's trade mark 'FAIR & LOVELY' is endorsed such that exclusivity cannot be claimed over 'FAIR' or 'LOVELY' separately or apart from the mark. The ampersand '&' is conjunctive and descriptive, lacking trade mark significance. The dominant and distinctive features of the marks are 'LOVELY' and 'CLEAR', which are visually, phonetically, and conceptually different. The respondent's mark does not create a likelihood of deception or confusion among consumers, and the respondent has discharged the onus under section 10(14) of the Trade Marks Act. The applicant's attempt to monopolize 'FAIR &' is untenable given the endorsement and the ordinary nature of the words.

Citation
[2014] ZAGPPHC 361
Parties
Applicant: Unilever PLC; Respondent: Kemtek (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 June 2014
Case Number
48157/13
Procedural Posture
Opposition Application / Judgment
Outcome
The opposition by the applicant is dismissed with costs.
Judges
Hughes
Legal Topics
Trade Mark Opposition, Likelihood of Confusion, Distinctiveness, Endorsement of Trademark, Onus of Proof
Intellectual Property Trade Mark Opposition Likelihood of Confusion Distinctiveness Endorsement of Trademark Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Unilever PLC

Applicant

Kemtek (Pty) Ltd

Respondent

Procedural Posture

Opposition Application / Judgment

Legal Issues

  1. 1 Whether the respondent's trade mark 'FAIR & CLEAR' in Class 3 is deceptively or confusingly similar to the applicant's registered trade mark 'FAIR & LOVELY'.
  2. 2 Whether the applicant can claim exclusivity over the words 'FAIR &' or 'FAIR' and 'LOVELY' separately due to the endorsement on its trade mark.
  3. 3 Whether the respondent has discharged the onus to show no reasonable probability of deception or confusion under section 10(14) of the Trade Marks Act.

Ratio Decidendi

The court found that the applicant's trade mark 'FAIR & LOVELY' is endorsed such that exclusivity cannot be claimed over 'FAIR' or 'LOVELY' separately or apart from the mark. The ampersand '&' is conjunctive and descriptive, lacking trade mark significance. The dominant and distinctive features of the marks are 'LOVELY' and 'CLEAR', which are visually, phonetically, and conceptually different. The respondent's mark does not create a likelihood of deception or confusion among consumers, and the respondent has discharged the onus under section 10(14) of the Trade Marks Act. The applicant's attempt to monopolize 'FAIR &' is untenable given the endorsement and the ordinary nature of the words.

Court Disposition

The opposition by the applicant is dismissed with costs.

Orders

  • The opposition by the applicant is dismissed with costs.