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South Africa decisions
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Golden Fried Chicken (Pty) Ltd v Vlachos and Another (4923/2018) [2020] ZAGPJHC 284; 2020 BIP 379 (GJ) (20 October 2020)
The High Court dismissed Golden Fried Chicken’s trade mark infringement claim over “Soul Souvlaki” and also dismissed the respondents’ non-use and validity counterclaim.
Cochrane Steel Products (Pty) Ltd v M-Systems Group (1272/2016) [2017] ZASCA 189; 2017 BIP 134 (SCA) (13 December 2017)
The Supreme Court of Appeal held that neither Cochrane nor any other trader is entitled to exclusive rights over the ordinary English words 'clear' and 'view', which constitute the composite mark 'CLEARVU'. These words are commonly used descriptively in the fencing industry, and the registration of the mark should not inhibit their bona fide use by others. The court affirmed that the imposition of a disclaimer and admission, as ordered by the court below, was warranted to prevent unjustified monopolies and to ensure fair competition. The court amended paragraph 1.2 of the order by deleting th…
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Pepsico Inc v Atlantic Industries (983/2016) [2017] ZASCA 109; 2017 BIP 122 (SCA) (15 September 2017)
The court found that the respondent's marks TWIST, LEMON TWIST and DIET TWIST are not purely descriptive but are inherently capable of distinguishing Atlantic's soft drinks from those of other producers. The word 'twist' does not describe the goods in a manner that other traders would legitimately wish to use, and its use is arbitrary in this context. The evidence showed extensive use and recognition of the TWIST mark by Atlantic. Regarding the appellant's proposed marks, the court held that the incorporation of 'TWIST' as the sole distinctive feature of Atlantic's marks into Pepsico's propos…
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Lucky Star Ltd v Lucky Brands (Pty) Ltd and Others (164/2015) [2016] ZASCA 77; 2017 (2) SA 588 (SCA); 2016 BIP 180 (SCA) (27 May 2016)
The court held that the appellant failed to establish that the respondents' marks 'Lucky Fish' and 'Lucky Fish and Chips' were so similar to the appellant's registered 'Lucky Star' trade marks as to be likely to deceive or cause confusion. The dominant elements of the marks ('Star' versus 'Fish') were sufficiently distinct, and the shared use of the word 'Lucky' was of minor significance given its generic nature. The court found no likelihood of deception or confusion among consumers, even considering notional use of the registered marks. The appellant's claims under s 34(1)(a), (b), and (c)…
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Rothmans of Pall Mall, London, Limited v Malu (48154/13) [2015] ZAGPPHC 264; 2015 BIP 208 (GP) (26 February 2015)
The High Court upheld Rothmans’ opposition to the SIR label trade mark, finding it confusingly similar to existing cigarette marks and refusing registration.
Distell Ltd v KZN Wines and Spirits CC (10006/2011) [2013] ZAKZDHC 25; 2013 BIP 263 (KZD) (23 May 2013)
High Court dismissed Distell’s trade mark infringement and passing-off claims over BLACK KNIGHT whisky, finding the marks and get-up too different to confuse consumers.
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