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[2014] ZASCA 187
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Societe Des Produits Nestle SA and Another v International Foodstuffs Co and Others (100/2014) [2014] ZASCA 187; [2015] 1 All SA 492 (SCA); 2014 BIP 317 (SCA) (27 November 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 100/2014
In
the matter between:
SOCIÉTÉ
DES PRODUITS NESTLÉ
SA
..........................................................
FIRST
APPELLANT
NESTLÉ
SOUTH AFRICA (PTY)
LTD
.........................................................
SECOND
APPELLANT
and
INTERNATIONAL
FOODSTUFFS
CO
.........................................................
FIRST
RESPONDENT
IFFCO
SOUTH AFRICA (PTY)
LTD
.........................................................
SECOND
RESPONDENT
THE
REGISTRAR OF TRADE
MARKS
......................................................
THIRD
RESPONDENT
Neutral
citation:
Société des
Produits Nestlé SA v International Foodstuffs
100/14)
[2014] ZASCA 187
(27 November 2014).
Coram:
Navsa ADP, Theron JA, Swain, JA, Zondi JA
et
Dambuza AJA
Heard:
3 November 2014
Delivered
:
27 November 2014
Summary
:
Trade Marks Act 194 of 1993
–
s 34(1)
(a)
and
(c)
–
shape of respondents’ ‘Break’ finger
wafer chocolate bar confusingly and/or deceptively similar to
appellants’
4 finger wafer and 2 finger wafer shape trade marks
– blurring of appellants’ shape mark established –
‘Break’
word trade mark of respondent not confusingly
similar to appellants’ word trade mark ‘Have a Break,
Have a Kit Kat’
– blurring of appellants’ word mark
not established –
s 10(5)
– appellants’
registered shape not attributable only to the technical shape –
s 16(5)
– Registrar entitled to make substantial
amendments to pending applications – must exercise caution in
doing so and
where amendment will cause injury or prejudice should
not be allowed – two-dimensional depiction of three-dimensional
shape
in application for registration.
ORDER
On
appeal from:
The North Gauteng High
Court, Pretoria (Louw J sitting as court of first instance):
The
following order is made:
1
The appeal by the first and second appellants against the order of
the court a quo dismissing the appellants’ application
with
costs, succeeds with costs, to the extent reflected in the following
order:
‘
The
first respondent and the second respondent are interdicted from
infringing the rights of the first applicant in trade mark
registration numbers 1999/23579 4 finger wafer shape and 1999/23580 2
finger wafer shape by making unauthorised use, in the course
of
trade, in relation to chocolate and/or confectionary products of any
finger wafer shape mark of any of the types referred to
in paragraph
11 of the founding affidavit of Kevin Corlett and illustrated in
annexures “N17A” to “N17E”
thereto, and of
any depictions of any such finger wafer shapes on the packaging or
labelling of such products, or of any finger
wafer shapes which are
confusingly and/or deceptively similar to the aforesaid registered
trade marks of the first applicant.
The
first and second respondents are ordered to pay the first and second
applicants’ costs.’
2
The cross-appeal by the first and second respondents against the
dismissal of the respondents’ counter-application and second
review application with costs, is dismissed with costs.
3
The costs orders are to include the costs of two counsel.
JUDGMENT
Swain
JA
(Navsa ADP, Theron, Zondi JJA
et
Dambuza AJA concurring):
[1]
The first appellant (Société des Produits Nestlé
SA) and the second appellant (Nestlé South Africa
(Pty) Ltd)
who I will collectively refer to as Nestlé, and the first
respondent (International Foodstuffs Co) and the second
respondent
(Iffco South Africa (Pty) Ltd) who I will refer to as Iffco, are
international competitors in the sale of chocolates.
[2]
The physical shape as well as the name of a chocolate bar marketed
and sold by Iffco has given rise to the present dispute.
Nestlé
alleged that these attributes of Iffco’s ‘Break’
chocolate bar, infringe trade marks held by Nestlé
in the ‘Kit
Kat’ chocolate bar, marketed and sold by it. It is also alleged
that these attributes result in the passing
off of Iffco’s
chocolate bar for that of Nestlé.
[3]
Nestlé unsuccessfully applied in the North Gauteng High Court
(Louw J) for interdictory relief based upon trade mark
infringement
and passing off. Nestlé was also unsuccessful in its attempt
to expunge certain word trade marks from the trade
marks register
held by Iffco in its chocolate bar.
[4]
Iffco was in turn equally unsuccessful in its attempt, brought by way
of a counter-application before the court a quo, to expunge
certain
shape trade marks held by Nestlé in its Kit Kat chocolate bar,
as well as an application to review the registration
of these shape
trade marks.
[5]
Leave was granted by the court a quo to Nestlé and Iffco
respectively to appeal against the dismissal of Nestlé’s
application and the dismissal of Iffco’s counter-application,
as well as the review application.
[6]
Because the validity of the shape trade mark held by Nestlé,
which it seeks to enforce against Iffco, forms the principal
basis
for the relief sought by Iffco in its counter and review
applications, it is necessary to deal firstly with Iffco’s
appeal against the dismissal of these applications. This is so
because if successful Nestlé’s shape marks will be
rendered invalid and unenforceable.
Iffco’s
review application
[7]
At the heart of Iffco’s application to review certain
administrative decisions taken by the Registrar in the registration
process of Nestlé’
s 4
wafer finger and 2 wafer finger
shape trade mark registrations, lies the contention that what was
initially sought to be registered
as trade marks, were pictorial
devices to be placed on packaging consisting of depictions of
products, and not the three-dimensional
shapes of the chocolate bars
themselves. In addition, it was submitted that there was no
endorsement which would indicate that
the trade marks were for the
three-dimensional shape of these goods.
[8]
The pictorial representations as submitted by Nestlé for
registration were as follows in respect of the 4 finger wafer
shape:
[SEE
PDF FOR IMAGE]
and
in respect of the 2 finger wafer shape:
[SEE
PDF FOR IMAGE]
[9]
In terms of s 2(1) of the Trade Marks Act 194 of 1993 (the Act)
a ‘mark’ is defined as:
‘
.
. . any sign capable of being represented graphically, including a
device, name, signature, word, letter, numeral, shape, configuration,
pattern, ornamentation, colour or container for goods or any
combination of the aforementioned.’
A
shape may accordingly fall within the definition of a trade mark as
defined in s 2(1) of the Act, to be used ‘for the
purpose
of distinguishing the goods or services in relation to which the mark
is used or proposed to be used from the same kind
of goods or
services connected in the course of trade with any other person’
[1]
.
[10]
In terms of Regulation 13(1) of the Trade Marks Regulations (GNR 578,
GG 16373 21 April 1995) every application for the registration
of a
trade mark shall contain a representation, suitable for reproduction,
affixed to it ‘in the space provided’ in
the form TM1 for
this purpose. In terms of Regulation 13(3) three-dimensional marks
must be represented in such a way that all
the dimensions are clearly
visible. In addition the pictorial representation of the mark must
have the required degree of certainty
for the public to know the
extent of the monopoly claimed.
[2]
[11]
Nestlé contended that the relevant trade marks were applied
for as shape marks and that this is visually apparent from
the
representations of the marks that were filed with the application
forms TM1 on 21 December 1999. Nestlé submitted that
Iffco is
wrong in its assertion that it applied for two-dimensional device
marks. On 18 January 2000 Nestlé applied for
an endorsement to
be entered against both the 2 finger and the 4 finger wafer shape
trade mark applications reading as follows:
‘
The
mark consists of the distinctive shape or appearance of the goods.’
Nestlé
argued that the endorsement simply clarified and confirmed the
monopoly in which it was seeking rights, whereas Iffco
contended that
by entering the endorsement the relevant trade marks were transformed
from device marks, into marks consisting of
the shape of goods.
[12]
Counsel were in agreement that the interpretation of a trade mark
application must be made objectively and through the eyes
of an
ordinary consumer in the same way as the infringement of a trade mark
is determined. That test requires a court to compare
the registered
trade mark and the allegedly infringing mark through the eyes of the
ordinary consumer, both side-by-side and apart
and determine, whether
as a matter of global first impression there exists a likelihood of
deception or confusion.
[3]
This
must be so because if the comparison is to be made objectively and
through the eyes of the ordinary consumer, the interpretation
of the
trade mark allegedly infringed must be conducted in the same manner.
Consequently, the subjective intention of the applicant
for the mark
sought to be registered is irrelevant. The interpretation of the mark
is to be decided by the court and the views
of expert witnesses as to
how the mark would be perceived by the ordinary consumer is
accordingly irrelevant. In this regard the
views of Dr Dean, Mr
Stewart and Mr Bouwer whose evidence was relied upon by the parties
is therefore irrelevant.
[13]
In my view on the facts of this case the representations of the marks
as contained in the application by Nestlé for
registration as
trade marks, viewed objectively through the eyes of the notional
ordinary consumer, would be perceived as two-dimensional
depictions
of three-dimensional shapes and not two-dimensional devices for the
following reasons. It is clear that the chocolate
bars in question
have been marketed and sold in South Africa under the name Kit Kat,
in the shape depicted in the applications
for registration, for the
last 50 years. In addition it is clear that Nestlé has also
for a considerable period of time
made extensive use of this shape of
the chocolate bar in advertisements to promote its sale.
[14]
That ordinary consumers are able to recognise the shape of Nestlé’s
Kit Kat finger wafer chocolate bar is borne
out by the results of two
market surveys conducted by Nestlé during 2005 and 2011 in
which consumers were shown a photograph
of each of the Kit Kat
chocolate bars in black and white in the form applied for (and
subsequently registered) and asked whether
any foodstuffs came to
mind. In both surveys a significant number of consumers associated
the shape depicted with chocolate or
confectionary as well as with
Nestlé and the Kit Kat brand. I agree with the submission made
by counsel for Nestlé
that Iffco has not challenged the survey
evidence in any meaningful way save to submit that the fact that the
public recognised
the mark is irrelevant for its interpretation.
However, the fact that the consumers surveyed, when shown the
identical two-dimensional
pictures which were the subject of the
application for the registration of the 2 finger and 4 finger wafer
shape trade marks, recognised
them as the three-dimensional Kit Kat
chocolate bar, without any endorsement to clarify that what was
depicted was the shape or
appearance of the chocolate bar, is
relevant to an objective assessment of what the perception of the
notional ordinary consumer
would be.
[15]
A further argument advanced by Iffco was that because a certain
portion of the specifications of goods claimed by Nestlé,
in
respect of the marks could not take the shape of the goods contended
for it meant that the applications as filed, when objectively
viewed,
were not marks for the shape of goods, but rather for materials
intended as ornamentation for packaging and the like. In
addition,
because the consumers surveyed were not shown the specifications of
the goods claimed their views were accordingly unreliable.
As the
distinctive shape of the chocolate bars in question were readily
identifiable by a significant number of consumers, in my
view the
inclusion of the list of specifications would not have drastically
altered these results. For the same reason the objective
perception
by the notional ordinary consumer of the shape claimed, in my view,
would not be affected by the addition of other goods
in addition to
‘cocoa and preparations having a base of cocoa, chocolate,
chocolate confectionary, sweets, candies, sugar
. . .’ in the
specifications. In any event, even if some of the goods listed in the
specifications could not take the shapes
as depicted in the
applications, this does not lead to the conclusion that what were
depicted were not shapes. It could equally
be concluded that Nestlé
included some goods that it did not intend to use as part of the
marks claimed. If this is so the
appropriate remedy would be to apply
for their removal in terms of sections 10(4), 24(1) and/or 27(1)
(a)
of the Act. In addition, after five years of non-use of any of the
goods specified with the mark, application could be made by
any
interested person for their removal from the register in terms of
s 27(1)
(b)
of the Act.
[16]
Because the 2 finger and 4 finger wafer shape trade marks filed
without any endorsements, would objectively have been interpreted
by
the notional ordinary consumer as two-dimensional depictions of
three-dimensional shapes, the endorsements which Nestlé
applied for did not affect the identity of the finger wafer shape
trade marks and were included simply to clarify the rights it
claimed. In this regard I agree with the view of the court a quo,
that even if the notional consumer was confused as to whether
the
marks were two-dimensional or three-dimensional, the endorsements
constituted a limitation in that the marks were limited to
a
three-dimensional shape. It is not without significance that Mr
Catic, the director of international business development of
Iffco,
and the deponent to the affidavits filed on behalf of Iffco, stated
the following in this regard: ‘Without the endorsement
that the
mark is a “shape mark”, the mark is simply a logo mark
and would not prohibit a person from using the shape
in a
three-dimensional form.
At worst for the respondents (Iffco) it
could be interpreted as either one or the other
(although the
respondents contend there is only the interpretation). For that
reason, too, it is non-distinctive.’ (My emphasis.)
[17]
The effect of the endorsements lies at the heart of the additional
ground advanced by Iffco for the review of the Registrar’s
decision. The submission was that the Registrar is not entitled in
terms of s 16(5) of the Act, to permit amendments to an
application that would substantially affect the identity of the trade
mark. Iffco conceded, however, that s 16(5) of the Act
on the
face of it, provides for an unlimited discretion on the part of the
Registrar to make amendments to pending applications.
Iffco submitted
that the Registrar’s discretion must be exercised in a
judicious and responsible manner, bearing in mind
the purpose and
spirit of the Act and its provisions as a whole, including the
provisions of s 29(1) which deal with the withdrawal
by the
Registrar of an application for registration accepted in error. The
practice of the Registrar and practitioners, according
to Iffco, has
been to regard s 25, which deals with the alteration of
registered trade marks, as the standard for making or
allowing
amendments to trade mark applications. The present enquiry is
concerned with the power of the Registrar in terms of s 16(5)
of
the Act to permit an applicant for registration of a trade mark,
whether before or after acceptance by the Registrar, to amend
the
application. This is to be contrasted with the power of the Registrar
in terms of s 25 of the Act to amend a registered
trade mark.
[18]
The relevant parts of s 16 of the Act provide:
‘
(1)
An application for registration of a trade mark shall be made to the
registrar in the prescribed manner.
. . .
(5)
The registrar or the court, as the case may be, may at any time,
whether before or after acceptance of the application, correct
any
error in or in connection with the application, or may permit the
applicant to amend his application upon such conditions as
the
registrar or the court, as the case may be, may think fit.’
[19]
Webster
et
al
[4]
state that an amendment of an application in terms of s 16(5)
would appear to relate to matters of substance concerning an
application contained in the form TM1 such as the identity of the
applicant, the form of the mark or the specification of goods
or
services.
[20]
Section 25(1) of the Act, dealing with the alteration of registered
trade marks provides that:
‘
(1)
The registered proprietor of a trade mark may apply in the prescribed
manner to the registrar for leave to add to or alter the
trade mark
in any manner not substantially affecting the identity thereof, and
the registrar may refuse leave or may grant it on
such terms and
subject to such limitations as he may think fit.’
Whether
the alteration sought substantially affects the identity of the mark
is determined by the application of the so-called ‘arresting
features test’.
[5]
The
registered mark and the mark containing the alteration or addition,
are physically inspected side-by-side and the question
to be asked
and answered is whether the mark retains its arresting features. If
they are then the identity of the mark is not substantially
altered.
[21]
Iffco, citing the Registrar’s practice directives
[6]
dealing with ‘amendment of marks’, submitted that they
indicate that the provisions of s 25 should be applicable
in the
exercise of the Registrar’s discretion when allowing the
amendments of the mark, which is the subject of the pending
application. Substantial changes affecting the identity of the mark
in the application accordingly cannot be made and the applicant
is
bound by the identity and nature of the mark as contained in the
initial application. The principles contained in s 25
of the Act
according to the original submissions by Iffco when applied to
pending applications meant, in reality that only minor
errors, such
as clerical errors and the like should be permitted to be amended in
pending applications. Counsel for Iffco, however,
in argument,
disavowed reliance upon such a limited interpretation being placed
upon the Registrar’s discretion.
[22]
The Registrar’s practice directive as well as the views of
certain practitioners of the relevance of the provisions of
s 25
to applications brought in terms of s 16 of the Act are
irrelevant to an interpretation of its provisions. As pointed
out,
s 25 deals with the entirely different scenario of amendments to
be made to registered marks. The Registrar’s discretion
is
quite clearly not limited to correcting minor errors such as clerical
errors and the provisions of s 46(1) of the Act provide
for this
eventuality. This section empowers the Registrar:
‘
.
. . [A]t any time before the registration of a trade mark permit the
amendment of any document relating to any application or
proceedings
before him on such terms as to costs or otherwise as he may think
just.’
Webster
et
al
[7]
state that this section deals with non-essential elements of an
application, such as the amendment of the form TM1 or any other
document forming part of the application, as opposed to amendments of
substance which are dealt with in terms of s 16(5).
[23]
Iffco also submitted that s 29(1) of the Act, which provides
that amendments to pending applications have retrospective
effect to
the date of the trade mark application should be understood as a
‘deeming provision’ in the interpretation
of s 16(5).
The argument is that the date of the application is important because
it in due course becomes the effective date
of the registered trade
mark and the date and period when priority can be claimed for filing
of ‘convention applications’
in foreign countries in
terms of the Paris Convention. Consequently, if a mark which on the
date of filing of the domestic application
was a device mark, and was
disseminated internationally on that basis, was later transformed in
the domestic country to a shape
or other form of mark, an anomaly
would arise. The international derivations of the mark would be for
device marks but the domestic
application would be for a shape mark.
I agree, however, with the submission by Nestlé that insofar
as the South African
application may be used as a priority
application in foreign countries, it will be for those foreign
countries to determine whether
that priority is legitimately claimed.
In the face of the clear and unambiguous wording of s 16(5) of
the Act, the discretion
of the Registrar and the court is unfettered
and includes the power to allow amendments to applications which
substantially affect
the identity of the mark. I agree, however, with
Webster
et
al
[8]
that caution should be exercised in allowing a substantial amendment
to a mark and that if injury or prejudice will result to another
party, or the public, it should not be allowed. For the reasons set
out above no substantial amendment was made to the shape mark
of
Nestlé and no prejudice or injury resulted.
[24]
Iffco’s appeal against the refusal by the court a quo to review
the Registrar’s decision on these grounds must
accordingly
fail.
Iffco’s
counter-application for the expungement of Nestlé’s
finger wafer shape trade mark registrations
[25]
The application by Iffco for the expungement of Nestlé’s
finger wafer shape trade marks is limited to s 10(5)
of the Act.
Section 10 of the Act deals with unregistrable trade marks and
section 10(5) provides as follows:
’
10.
The following marks shall not be registered as trade marks or, if
registered, shall, subject to the provisions of sections 3
and 70, be
liable to be removed from the register:
.
. .
(5)
a mark which consists exclusively of the shape, configuration, colour
or pattern of goods where such shape, configuration, colour
or
pattern is necessary to obtain a specific technical result, or
results from the nature of the goods themselves.’
[26]
The cornerstone of Iffco’s challenge is that the trapezoidal
shape of Nestlé finger wafer shape trade mark registrations
is
entirely a technical requirement. It is not in dispute that chocolate
bars have to be trapezoidal in shape when viewed in cross-section
in
order to facilitate their release (the so-called ‘release
angle’) from the moulds in which they are formed. In short
its
shape was merely functional. What is, however, in issue is whether
the additional elements which contribute to the shape of
Nestlé’s
finger wafer shape trade marks (other than the cross-sectional
trapezoidal shape) are not distinctive but
simply ‘banal’
arbitrary additions to the shape of the product. If they are then
Nestlé’s finger wafer
shape marks consist exclusively of
a shape which is necessary to obtain a specific technical result (ie
release of the chocolate
bar from the mould) were not registrable and
are to be expunged from the register.
[27]
Section 10(5) is concerned with the question of ‘whether the
registered shape is necessary to obtain a specific technical
result’
[9]
or whether ‘the
essential functional features of that shape are attributable only to
the technical result’.
[10]
[28]
Both parties relied upon certain decisions of overseas tribunals, in
which Nestlé’s finger wafer shape marks were
in issue,
as support for their competing contentions.
[29]
Nestlé relied upon the findings made by the Second Board of
Appeal of the Office for Harmonization (OHIM) in the United
Kingdom
in the case of
Société
des Produits Nestlé SA v Cadbury Holdings Ltd
(11
December 2012). One of the issues for determination there was whether
the shape of Nestlé’s 4 finger wafer bar
was precluded
from registration because its shape consisted exclusively, in its
essential characteristics, of the shape of the
goods which was
technically causal of, and sufficient to obtain the intended
technical result. It was held that the shape in question
possessed
three attributes which were not necessary to achieve the technical
function. Firstly, the rectangular base upon which
the four identical
trapezoidal bars were aligned was not a feature which responded to a
technical need or performed a technical
function of the goods at
issue. Secondly, even if it were considered that the bars served the
purpose of facilitating the partition
of the product into four
portions at the moment of consumption, this solution was neither
technical nor essential in the shape
of the chocolate bar. Thirdly,
the technical solution could be incorporated without difficulty by
competitors in shapes which did
not have the same non-functional
elements as contained in Nestlé’s chocolate bar such as
the trapezoidal shape of
each bar, the alignment of the bars, the
alignment into four bars, the common joining base and its rectangular
shape.
[11]
[30]
Although the Second Board of Appeal remarked that these non-technical
features were rather banal, the fact remained that these
characteristics, not dictated by any technical reason, were
sufficient to make that shape recognised by the relevant public as
a
badge of origin, as an indication of the commercial origin of the
products bearing them.
[12]
[31]
Iffco, in turn, relied upon the decision of the United Kingdom’s
Intellectual Property Officer (IPO) dated 20 June 2013
in the case of
Société
des Produits Nestlé SA v Cadbury Holdings Ltd
in
opposition proceedings. The main findings were as follows. Firstly,
it was held that the basic rectangular ‘slab’
shape
represented by the mark was a shape which results from the nature of
moulded chocolate bars. Secondly, the presence of breaking
grooves
was a feature which was necessary to achieve a technical result.
Thirdly, the angle of more than 8-10 degrees for the sides
of the
product and the breaking grooves resulted from the nature of moulded
chocolate products, and the depths of the grooves was
necessary to
achieve a technical result. Fourthly, the number of breaking grooves
and fingers was determined by the desired portion
size.
[13]
In the result it was held that Nestlé’s finger wafer
shape was contrary to s 3(2)
(b)
of
the United Kingdom Act, which prohibits the registration of ‘the
shape of goods which is necessary to achieve a technical
result’.
[32]
Nestlé submitted that achieving a portion size is not a
technical result, but simply a marketing choice. In addition
the
finding that the number of fingers reflects a technical result
(portion size) is wrong because it is not necessary to have
breakable
fingers at all to achieve a portion size. The choice of fingers
rather than square or squat – rectangular pieces
of chocolate
is an aesthetic choice, not dictated by technical considerations.
Portion size can just as easily be adjusted by increasing
the size or
weight of the fingers and the number of fingers is therefore not
necessary to achieve a portion size. As regards the
presence of
breaking grooves, whilst necessary to achieve breakability, the shape
of the fingers joined by that groove, and thus
the length and breadth
of the groove itself, was not necessary to achieve a technical
result. I agree with these submissions. In
addition the finding that
the basic rectangular ‘slab’ shape of the finger wafer
shape trade marks resulted from the
nature of moulded chocolate bars,
was the result of this generally rectangular shape being attacked on
the basis that it ‘results
from the nature of the goods
themselves’. This challenge, however, is not raised in these
proceedings.
[33]
This decision of the UK IPO was appealed by Nestlé to the
Chancery Division
Société des Produits Nestlé
SA v Cadbury UK Ltd
[2014] EWHC 16
(Ch). On 17 January 2014,
Justice Arnold referred certain questions to the Court of Justice of
the European Union and expressed
his views on the questions raised.
His views do not constitute findings of the court and with respect do
not require further consideration.
[34]
In my view there are a number of features of Nestlé’s
finger wafer shape trade marks, which are distinctive and
not
attributable only to a technical result. Most significant is the
‘plinth’ or ‘apron’ which forms the
basis for
the composite finger wafer shapes, whether in the form of the four or
two finger varieties. This imports a distinctive
appearance and
aesthetic appeal to either product. I disagree with Iffco’s
contention that the ‘plinth’ is merely
an arbitrary
addition to the product. In addition the ‘finger’ shape
of each of the chocolate wafer bars when viewed
from above is
distinctive. I agree with Nestlé’s contention that the
high length to width ratio of each of the chocolate
wafer fingers is
distinctive and a major non-functional element of the chocolate bars
as a whole.
[35]
I am fortified in these views by the rationale underlying the
provisions of s 10(5) of the Act which ‘is to prevent
trade mark protection from granting its proprietor a monopoly on
technical solutions, or functional characteristics of a product
which
a user is likely to seek in the product of competitors’.
[14]
It is quite clear that the finger wafer shape trade marks in issue do
not grant Nestlé a monopoly over trapezoidal shaped
chocolate
bars. Iffco does not identify what ‘technical solution’
or ‘functional characteristics’ Nestlé
has
obtained a monopoly over in terms of the finger wafer shape trade
marks.
[36]
I accordingly agree with the conclusion of the court a quo that
Nestlé’s finger wafer shape trade marks are not
solely
shapes of goods which incorporate a technical solution. Iffco’s
appeal against the court a quo’s refusal to
expunge Nestlé’s
finger wafer shape trade marks from the register accordingly fails.
Nestlé’s
application for interdictory relief based upon Iffco’s alleged
use as trade marks of the 4 finger wafer
shape and 2 finger wafer
shape trade marks
[37]
Nestlé alleges infringing use by Iffco of its 4 finger and 2
finger wafer shape trade marks in the following manner.
In the shape
of Iffco’s Break 4 finger wafer product:
[SEE
PDF FOR IMAGE]
and
its representation on the packaging of its Break 4 finger wafer
product:
[SEE
PDF FOR IMAGE]
As
well as the shape of Iffco’s Break Mini 2 finger wafer product:
[SEE
PDF FOR IMAGE]
And
its representation on the packaging of its Break Mini 2 finger wafer
product:
[SEE
PDF FOR IMAGE]
[38]
What is immediately apparent is that the shape of Iffco’s
‘Break’ chocolate bars are almost identical to
Nestlé’s
4 finger and 2 finger wafer shape trade marks. The only insignificant
difference is the superficial decorative
pattern which is embossed on
the top of Iffco’s chocolate finger wafer bars.
[39]
In terms of s 34(1)
(a)
of the Act Nestlé has to
establish that Iffco has used the mark in respect of the same goods
for which the trade marks are
registered which is either identical
to, or so nearly resembles the registered trade mark, so as to be
likely to deceive or cause
confusion. The mark is used in respect of
the same goods, namely chocolate bars. The issue accordingly is
whether there is a likelihood
of confusion or deception between the
chocolate bars. In addition Nestlé has to establish that Iffco
is using the finger
wafer shapes themselves, or on the packaging of
their chocolate bar ‘Break’, as a badge of origin and not
simply in
a descriptive manner.
[40]
The use of the trade mark must be ‘such that it creates the
impression that there is a “material link in trade
between the
third party’s goods and the undertaking from which those goods
originate”. There can only be primary trade
mark infringement
if it is established that consumers are likely to interpret the mark,
as it is used by the third party, as designating
or tending to
designate the undertaking from which the third party’s goods
originate’.
[15]
[41]
As regards the likelihood of deception or confusion ‘what is
required is an interpretation of the mark through the eyes
of the
consumer as used by the alleged infringer. If the use creates an
impression of a material link between the product and the
owner of
the mark there is infringement; otherwise there is not. The use of a
mark for purely descriptive purposes will not create
that impression
but it is also clear that this is not necessarily the definitive
test’.
[16]
The issue is
whether the public would perceive the finger wafer shape to perform
the function of a source identifier and for that
purpose the finger
wafer shape must be considered in context and not in isolation.
[17]
[42]
Iffco submitted that there is no evidence to show any actual
instances of confusion over the nine years that the chocolate
bar of
Nestlé and that of Iffco have been sold side-by-side in
Shoprite stores. Evidence of actual confusion may be of special
value
in a particular case,
[18]
but
as pointed out by this court, however, the likelihood of deception or
confusion is ‘a matter for the court to decide
and, taking into
account the difficulties associated with the admissibility and the
weight to be given to such evidence, no significance
can be attached
to the absence of this evidence’.
[19]
In my view, by virtue of the fact that the shape of Iffco’s
chocolate Break bars is identical to that of Nestlé’s
Kit Kat chocolate bar, whether in the 4 finger or 2 finger wafer
varieties, when viewed through the eyes of the ordinary consumer,
side-by-side and apart, as a matter of global first impression there
exists a likelihood of deception or confusion.
[43]
The issue of whether the ordinary customer would perceive the finger
wafer shape depicted in two-dimensions on the packaging
of Iffco’s
‘Break’ chocolate bars, as well as the three-dimensional
shape of the chocolate bar itself, as a source
identifier, ie as a
badge of origin of the chocolate bar, must be considered in context.
The court a quo concluded that customers
would not see the depictions
of the chocolate fingers on the respondent’s packaging as an
indication of their origin, but
simply as an indication of what was
inside the package. In other words, purely descriptive use of the
mark. The court also recorded
that when seeing the product after
opening the package, the consumer would also not believe that the
product emanates from Nestlé,
or that there was any connection
between the product and Nestlé’s product. It appears
that the main factor which led
the court a quo to this conclusion was
the fact that the most prominent feature of the packaging was the
word ‘Break’
which was in capital letters, with the word
‘Tiffany’ above the word ‘Break’ in an
elliptical circle. In
effect the court a quo minimized the depiction
of the shape of the chocolate bar on the packaging.
[44]
The evidence of surveys conducted by Nestlé, referred to
above, is of importance in this regard. It is clear that the
unique
shape of Nestlé’s Kit Kat chocolate bar has been
advertised and sold for 50 years in South Africa. The market
survey
has established that a significant number of consumers associated the
shape of the chocolate bar with Nestlé’s
Kit Kat
product. In this regard Iffco contended that the surveys were of no
assistance because they were conducted in 2005 and
2011 respectively,
whereas Iffco had commenced their conduct in June 2002 and the
lawfulness of their conduct is to be assessed
at that date. It was
further submitted that Nestlé has to show that as at June 2002
the public would have perceived the
use by Iffco as trade mark use,
for the reason that the rights of one party cannot be overtaken by
another.
[20]
What has to be
determined is the perception of the consumer as to the existence of a
material link between the two products. The
evidence of the surveys
is not conclusive but simply of relevance in determining this issue.
The results of these surveys must
be considered in the context of the
clear evidence that Nestlé has marketed and sold its Kit Kat
chocolate bar in its present
shape in South Africa for more than 50
years. This is not a case where the evidence is that Nestlé
only sold and acquired
a reputation in the shape of its Kit Kat
chocolate bar after Iffco entered the market with its Break bar in
June 2002, and that
Nestlé now seeks to rely upon that
subsequently acquired reputation to disentitle use by Iffco of the
almost identical shape
of its Break chocolate bar. The evidence to
the contrary is that Nestlé enjoyed a reputation in the shape
of its Kit Kat
chocolate bar before Iffco even entered the South
African market. I agree with the submission of Nestlé that
once it is
accepted, as the court a quo did, that Nestlé
enjoys a reputation in its finger wafer shapes, whether in the 4
finger or
2 finger varieties, it follows that these shapes are
distinctive and designate the origin of the proprietor.
[45]
The fact that according to Iffco it is common in the confectionary
industry to depict the actual product in the packaging,
so that the
consumer knows what is inside the packaging does not per se mean that
such use constitutes descriptive use. What is
of importance is
whether the shape of the product depicted on the packaging, is a
shape that is capable of distinguishing the product
of the owner of
the shape trade mark in question from the products of
competitors.
[21]
If the public
perceives that shape of the product depicted on the packaging as a
badge of origin this would not constitute descriptive
use.
[46]
In addition, this court has held that one cannot use a trade mark and
then argue that it was used as ornamentation.
[22]
This is not a case where the finger wafer shape trade marks of Nestlé
have been altered in some way by Iffco to distinguish
their ‘Break’
chocolate bars from that of Nestlé’s ‘Kit Kat’
chocolate bars. As pointed out
above, the shape of the chocolate bars
are almost identical, save for the insignificant decorative pattern
which is embossed on
the tops of Iffco’s chocolate bars.
[47]
I accordingly conclude that the court a quo erred in finding that
consumers would not be deceived or confused by the depiction
on the
packaging of Iffco’s chocolate bars nor by the shape of their
chocolate bars as to the origin of the chocolate bars.
The use by
Iffco of the shape as depicted on its packaging and its
three-dimensional form would be perceived by the consumer as
a source
identifier, that is, as a badge of origin, of the goods as emanating
from Nestlé.
[23]
[48]
The use by Iffco of the 4 finger and 2 finger wafer shape trade mark
of Nestlé accordingly contravenes s 34(1)
(a)
of
the Act. The court a quo accordingly erred in concluding that Nestlé
had failed to prove an infringement of the registered
finger wafer
trade marks in terms of s 34(1)
(a)
of the Act. Whether Nestlé
is entitled to an order interdicting Iffco from using this trade
mark, requires the consideration
of a number of special defences
raised by Iffco, namely waiver, acquiescence and estoppel, in due
course.
[49]
Nestlé also relied upon the provisions of s 34(1)
(c)
of the Act to restrain the use by Iffco of the finger wafer shape
trade marks. Having already established that its trade mark is
well-known in South Africa and that Iffco is using a trade mark which
is identical or similar to this registered trade mark, Nestlé,
for the purposes of this section, had to establish that Iffco’s
shape of its Break chocolate bars, is likely to take unfair
advantage
of, or be detrimental to, the distinctive character or the repute of
the registered 4 finger wafer shape and 2 finger
wafer shape trade
marks.
[24]
[50]
The section ‘aims to protect the commercial value that attaches
to the reputation of a trade mark, rather than its capacity
to
distinguish the goods or services of the proprietor from those of
others . . . That being so, the nature of the goods or services
in
relation to which the offending mark is used, is immaterial, and it
is also immaterial that the offending mark does not confuse
or
deceive’.
[25]
[51]
The protection of s 34(i)(
c
)
extends beyond the primary function of a trade mark which is to
signify the origin of goods or services. It strives to protect
the
unique identity and reputation of a registered trade mark which sells
the goods. Its object it to avoid ‘blurring’
and
‘tarnishment’ of the trade mark.
[26]
[52]
The advantage or detriment complained of must be of a sufficiently
significant degree to restrain the use of the trade mark.
[27]
The court must be satisfied by evidence of actual detriment, or of
unfair advantage, but depending on the primary facts, these
may be
self-evident.
[28]
I agree with
the submission by Nestlé that as the sales of Iffco’s
Break chocolate bars increase consumers will associate
Nestlé’s
registered finger wafer shape with the product of Iffco, or as the
shape of a chocolate bar sold by a number
of proprietors in South
Africa. The loss of the unique shape of Nestlé’s Kit Kat
bar as a distinctive attribute will
inevitably result in a loss of
advertising or selling power to Nestlé. This will clearly
result in ‘blurring’
of Nestlé’s finger
wafer shape trade mark. In addition, because Nestlé and Iffco
are direct competitors, increased
sales of Iffco’s Break
chocolate bars will be at the expense of Nestlé’s Kit
Kat chocolate bar. Economic harm
to Nestlé is consequently
self-evident from the primary facts.
[53]
The court a quo accordingly erred in concluding that Nestlé
had failed to prove an infringement of the registered finger
wafer
trade marks in terms of s 34(1)(
c
) of the Act. Whether
Nestlé is entitled to interdictory relief in this regard again
must await a consideration of the special
defences raised by Iffco as
referred to above.
Nestlé’s
application for interdictory relief based upon Iffco’s use of
the ‘Break’ trade mark in
contravention of Nestlé’s
word trade marks
[54]
Counsel for Nestlé conceded at the hearing that if Nestlé
was successful in interdicting the use by Iffco of
Nestlé’s
4 finger and 2 finger wafer shape marks, there would be no practical
need to interdict the use by Iffco of
the ‘Break’ word
mark. However, Counsel for Iffco submitted that the resolution of the
dispute concerning the shape
marks would not be dispositive of the
dispute concerning the use by Iffco of the ‘Break’ word
mark. The issue required
determination in the appeal.
[55]
A determination of whether Iffco’s ‘Quanta Break’
and ‘Tiffany Break’ word trade marks, contravene
Nestlé’s
word trade marks must be carried out without regard to the finding
that the shape of Iffco’s chocolate
finger wafer bars to which
the name ‘Break’ is attached, is confusingly or
deceptively similar to Nestlé’s
4 finger and 2 finger
wafer shape marks. This is because the comparison is between the
respective word marks of Nestlé and
Iffco and not between the
respective word marks viewed in conjunction with the shape of the
products which they name.
[56]
The registered word trade marks of Nestlé are the following:
Have
a Break, Have a Kit Kat
Have
a Break . . . Have a Kit Kat
Have
a Break
Take
a Break
All
of these marks, except for ‘Have a Break, Have a Kit Kat’
are endorsed with disclaimers on the word ‘Break’.
Counsel for Nestlé in their heads of argument accordingly rely
solely on the mark not subject to the disclaimer, namely
‘Have
a Break, Have a Kit Kat.’
[57]
The registered word trade marks of Iffco are ‘Quanta Break’
and ‘Tiffany Break’, but it is clear that
Iffco uses the
word ‘Break’ on its packaging as a trade mark. By virtue
of the fact that Nestlé relies upon
the provisions of
s 34(1)(
a
) of the Act, it has to be determined by
comparing the mark of Nestlé relied upon, namely ‘Have a
Break, Have a Kit
Kat’, with the mark of Iffco namely, ‘Break’
whether there is a likelihood that consumers would be deceived or
confused into believing that Iffco’s product is a Nestlé
product, or that there was a material connection between
them.
[58]
Of significance in this enquiry is the fact that Nestlé has
disclaimed use of the word ‘Break’ in three
out of the
four registered word marks. Why it has not been disclaimed in the
remaining word mark relied upon by Nestlé is
not explained.
There is certainly nothing in the word mark relied upon to
distinguish it in this regard from the other word marks.
It is clear
that a disclaimer allows others to use disclaimed features in a trade
mark sense and is not simply intended to protect
third parties who
use the word ‘Break’ descriptively in association with
chocolate confectionary as contended for by
Nestlé. If this
was so, the provisions of s 34(2)(
b
)
of the Act would be rendered superfluous. This section permits the
descriptive use of features which have not been disclaimed.
In this
regard I agree with the view expressed by the court a quo, relying
upon the authors Webster and Page,
[29]
that the effect of a disclaimer is that the trade mark owner
recognises that that which is disclaimed, is not in itself
distinctive
of the origin of the goods or services in question and
that there will be no infringement of the trade mark, where the only
similarity
between the trade mark and the mark complained of consists
of a similarity to those features which have been disclaimed.
[59]
Nestlé does not claim exclusivity in the word ‘Break’
in a trade mark sense. What is relied upon is the
contention that the
use of the word ‘Break’ as a trade mark is confusingly or
deceptively similar to Nestlé’s
trade mark ‘Have a
Break, Have a Kit Kat’. Nestlé contends that Iffco has
appropriated a dominant and essential
element of their trade mark,
namely the word ‘Break’. I disagree. In order to find
that a consumer would be confused
or deceived into thinking that the
word ‘Break’ indicated that the origin of Iffco’s
product was that of Nestlé,
the highly distinctive name of
Nestlé’s product ‘Kit Kat’ would have to be
ignored. It is clear that the
likelihood of confusion must be a real
probability, not a remote possibility.
[30]
In my view, the requisite likelihood of confusion amongst consumers
confronted by the respective trade marks has not been established
by
Nestlé. Nestlé’s appeal against this finding by
the court a quo accordingly fails.
[60]
Nestlé also relies upon the provisions of s 34(1)(
c
)
of the Act to restrain the use by Iffco of the Break trade mark. As
pointed out the object of this section is to avoid ‘blurring’
and ‘tarnishment’ of the trade mark. It is clear that the
mark of Nestlé relied upon, namely ‘Have a Break,
Have a
Kit Kat’ is well-known and has been used for a considerable
period of time in South Africa. As pointed out it is not
necessary
for Nestlé to prove the likelihood of confusion among
customers when viewing the respective trade marks. Nestlé
contends that the harm to the selling power in the Break trade mark
is self-evident, because it will now be precluded from relying
upon
the ‘Have a Break’ concept in its advertising. It argues
that the value of the Break trade marks, which were devised
and used
as advertising slogans, resides in their advertising value. It is
alleged that Nestlé’s promotion of its
Kit Kat product
using the Break trade marks, will have the undesirable effect of
promoting Iffco’s Break products.
[61]
As pointed out the court must be satisfied by evidence of actual
detriment, or of unfair advantage. However, this may be self-evident
from the primary facts. In my view the mere fact that the concept of
‘Have a Break, Have a Kit Kat’ has become well-known
in
connection with the Nestlé’s Kit Kat chocolate bar, does
not mean that the detriment or unfair advantage alleged
by Nestlé
in the use by Iffco of the trade mark Break is self-evident. This is
a case which required evidence to prove the
‘blurring’ of
Nestlé’s word mark in the respects alleged. Nestlé’s
appeal against the finding
of the court a quo must accordingly fail.
Nestlé’s
application to expunge Iffco’s Quanta Break and Tiffany Break
trade marks
[62]
In the light of the conclusion that Iffco’s Quanta Break and
Tiffany Break trade marks are not confusingly similar to
Nestlé’s
trade marks and their use does not lead to the dilution of Nestlé’s
Break trade marks by blurring,
there is no basis for ordering that
Iffco’s trade marks be expunged from the register. Nestlé’s
appeal against
the court a quo’s refusal to grant such an order
accordingly fails.
Nestlé’s
claim in terms of s 35(3) of the Act and for passing off
[63]
Counsel for Iffco conceded that if Nestlé was successful in
obtaining interdictory relief either in terms of s 34(1)(
a
)
or (
c
) of the Act, there would be no need to deal with these
claims.
Iffco’s
special defences based upon acquiescence, waiver and estoppel
[64]
A great deal of evidence was filed by Nestlé and Iffco dealing
with the defences raised by Iffco of tacit waiver (through
silence or
a failure to act in the face of a legal duty to do so) and
acquiescence, on the part of Nestlé. Iffco also raised
the
defence of estoppel based upon an implied representation made by
Nestlé as a result of a failure to act in preventing
Iffco
from continuing to use the contested trade marks.
[65]
The basis for these defences is the allegation by Iffco that Nestlé
was aware of Iffco’s use of the Quanta Break
and Tiffany Break
word marks, as well as the 4 finger wafer shape trade mark from 2002,
but only took action in June 2011.
[66]
At the hearing counsel for Iffco quite correctly abandoned reliance
upon the defence of acquiescence, which does not form part
of our
law.
[31]
In addition, counsel
stated he would not address further argument on these defences and
relied solely upon the submissions made
in his heads of argument.
[67]
I find it unnecessary to deal with the evidence in detail because it
is clear that Iffco received demands from Nestlé
on several
occasions to cease the sale of its Break chocolate bar in South
Africa and elsewhere in the world. Although it is clear
that no
demands were made during the period 2004 to 2008 for Iffco to cease
selling their Break chocolate bar in South Africa,
the delay is
explained by Nestlé on the basis that it was awaiting
registration of the finger wafer shape trade marks in
South Africa
before taking action.
[68]
In addition during this period in 2008 the parties litigated over the
identical trade mark issues, with Nestlé instituting
legal
proceedings against Iffco in Iffco’s country of domicile being
the United Arab Emirates. From 2008 a number of meetings
were held
between the parties to settle their dispute on a global scale.
[69]
On a conspectus of all of the evidence I am satisfied that Iffco was
never led to believe that Nestlé would not enforce
the
contested trade marks in South Africa against Iffco. The conduct of
Nestlé never unequivocally indicated a waiver of
the rights it
held in the contested trade marks, nor did it amount to a
representation that action would not be taken against Iffco
to
enforce these rights.
[70]
These defences were not dealt with by the court a quo, finding it
unnecessary to do so because of the dismissal of Nestlé’s
application on the basis that it had failed to prove infringement of
its trade marks. For the reasons set out above these defences
must
fail and Nestlé is accordingly entitled to the interdictory
relief referred to above.
[71]
The following order is made:
1
The appeal by the first and second appellants against the order of
the court a quo dismissing the appellants’ application
with
costs, succeeds with costs, to the extent reflected in the following
order:
‘
The
first respondent and the second respondent are interdicted from
infringing the rights of the first applicant in trade mark
registration numbers 1999/23579 4 finger wafer shape and 1999/23580 2
finger wafer shape by making unauthorised use, in the course
of
trade, in relation to chocolate and/or confectionary products of any
finger wafer shape mark of any of the types referred to
in paragraph
11 of the founding affidavit of Kevin Corlett and illustrated in
annexures “N17A” to “N17E”
thereto, and of
any depictions of any such finger wafer shapes on the packaging or
labelling of such products, or of any finger
wafer shapes which are
confusingly and/or deceptively similar to the aforesaid registered
trade marks of the first applicant.
The
first and second respondents are ordered to pay the first and second
applicants’ costs.’
2
The cross-appeal by the first and second respondents against the
dismissal of the respondents’ counter-application and second
review application with costs, is dismissed with costs.
3
The costs orders are to include the costs of two counsel.
________________
K
G B SWAIN
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: C Puckrin SC, G D Marriot
Instructed
by:
Adams
& Adams Inc, Pretoria
c/o
Honey Attorneys Inc, Bloemfontein
For
the Respondents: R Michau SC, L G Kilmartin
Instructed
by:
Goldman
Judin Inc, Illovo
c/o
Rossouws and Conradie Inc, Bloemfontein
[1]
This
court has recognised that the shapes of goods may perform a trade
mark function.
Beecham
Group plc & another v Triomed (Pty) Ltd
2003
(3) SA 639
(SCA);
Die
Bergkelder Bpk v Vredendal Koöp Wynmakery & others
2006
(4) SA 275 (SCA).
[2]
Triomed
(Pty) Ltd v Beecham Group and others
2001
(2) SA 522
(T) at 539D-F.
[3]
Plascon
Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 640-641;
Bata
v Face Fashions CC and another
2001
(1) SA 844
(SCA) para 9;
Puma
v Global Warming
2010
(2) SA 600
(SCA) paras 8-9.
[4]
G
C Webster, N S Page, C E Webster, G E Morley
South
African Law of Trade Marks
(2013)
at 8.25.
[5]
Bernstein
Manufacturing Co (1961) (Pvt) Ltd v Shepherdson
1968 (4) SA 386
(T) at 389H;
Adcock
Ingram Consumer Products Ltd v Dhansooklal Jeenabhai Mody t/a Black
Magic
[1997]
3 All SA 125
(T) at 129.
[6]
Companies
and Intellectual Property Registration Office: Guidelines in the
examination of trade mark applications.
[7]
Supra
paragraph
8.25.
[8]
Supra
paragraph 8.25.
[9]
Beecham
supra
para
30.
[10]
Koninklijke
Philips Electronics NV v Remington Consumer Products Ltd
(para
84) quoted with approval in
Beecham
supra
para
28.
[11]
Paras
104-107.
[12]
Para
108.
[13]
Para
81.
[14]
Beecham
supra
para
28 quoting Philips para 78.
[15]
Verimark
(Pty) Ltd v BMW AG; BMW AG v Verimark (Pty) Ltd
2007
(6) SA 263
(SCA) para 5.
[16]
Verimark
para
7.
[17]
Verimark
para 9.
[18]
Reckitt
& Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd
1993
(2) SA 307
(A) at 316I.
[19]
Adidas
AG & another v Pepkor Retail Ltd
[2013]
ZASCA 3
(28 February 2013) para [27].
[20]
A
M Moolla Group Ltd and others v The Gap Inc and others
2005
(6) SA 568
(SCA) at 582E-G.
[21]
Bergkelder
supra
para
9.
[22]
Puma
AG Rudolf Dassler Sport v Rampar Trading (Pty) Ltd & others
[2011]
2 All SA 290
(SCA) para 27.
[23]
In
the matter of
Nestlé
Deutschland AG and Société des Produits Nestlé
SA v Inter Cookies Gebäck – und Kuchenspezialitäten
GmbH
– the District Court of Cologne held that the defendant was
prohibited from marketing a chocolate bar, which was confusingly
similar to Nestlé’s three-dimensional trade mark in its
Kit Kat chocolate bar. The court held (at para 3) that the
form of
the defendant’s product and as depicted on the wrapping was
identical to Nestlé’s product and had
become known to
the consumer as an indication of origin of Nestlé’s
product.
[24]
Bata
v Face Fashions CC and another supra
at
para 13.
[25]
National
Brands Ltd v Blue Lion Manufacturing (Pty) Ltd
2001
(3) SA 563
(SCA) para 11.
[26]
Laugh
it Off Promotions CC v SAB International (Finance) BV t/a SABMARK
International
(
Freedom
of Expression Institute as Amicus Curiae)
[2005] ZACC 7
;
2006
(1) SA 144
(CC) paras 40 and 41.
[27]
Laugh
it Off
para
39.
[28]
Verimark
para
14 n 21.
[29]
Paragraph
9.8.
[30]
Cowbell
AG v ICS Holdings Ltd
2001
(3) SA 941
(SCA) para 15.
[31]
Turbek
Trading CC v A & D Spitz (Pty) Ltd & another
[2010]
2 All SA 284
para 15.