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[2021] ZAGPPHC 463
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ICollege (Pty) Ltd v Xcellence Skills Development and Mentorship CC and Another (40105/2019) [2021] ZAGPPHC 463 (19 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No:
40105/2019
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ICOLLEGE
(PTY) LTD
APPLICANT
and
XCELLENCE
SKILLS DEVELOPMENT
AND
MENTORSHIP CC
FIRST RESPONDENT
ZA
CENTRAL REGISTRY NPC
SECOND RESPONDENT
JUDGMENT
BASSON
J
NATURE
OF THE RELIEF SOUGHT
[1]
The
applicant seeks interdictory relief in terms of either section
34(1)(a),(b) or (c) of the Trade Marks Act
[1]
(the Act). It also seeks an order interdicting and restraining the
first respondent from passing off its services as being those
of, or
as being associated in trade with those of, the applicant by using
the trade mark “
iCOLLEGE”
.
The remainder of the prayers deal with issues such as costs and the
transfer of ownership of the domain name ICOLLEGE.CO.ZA to
the
applicant.
The
main purpose of this application is to restrain the first respondent
from infringing the applicant’s rights acquired through
the
registration of its ICOLLEGE trade mark.
THE
APPLICANT
[2]
The applicant is described as iCOLLEGE
(Pty) Ltd which is a private further education and training college
registered with the Department
of Higher Education and Training. It
provides accredited and skills-based training with the Sector
Education and Training Authority
(SETA) at its 17 campuses nationwide
and at an e-learning centre. The applicant states that it presently
has about 35 000
enrolled students at its campuses nationwide
and approximately 1 000 students enrolled at one distance
learning centre.
[3]
The applicant is the registered proprietor of the
following trade marks (iCOLLEGE):
(please
refer to pdf)
registered in class 41 under
registration no. 2013/32192, in respect of,
inter
alia
, education and training services.
This mark was applied for and registered on 18 November 2013; and
(please
refer to pdf)
registered in class 41 under
registration no. 2018/02190, in respect of,
inter
alia
, education and training services.
This mark was applied for and registered on 29 January 2018.
[4]
As is evident from the above, the applicant’s
two marks (the iCOLLEGE trademarks) are identical but for the fact
that the
latter mark is a colour version of the former mark. The
applicant has made extensive and continuous use of the iCOLLEGE trade
mark
since about 2013.
[5]
In addition, the applicant is also the
registered proprietor of the domain name “
icollegeint.co.za”
which was registered on 5 November 2013.
[6]
The applicant states that its website is
visited by approximately 10000 unique visitors per month. The
applicant trades under its
registered company name iCOLLEGE (Pty) Ltd
and also utilises its iCOLLEGE trade marks in the course of trade.
[7]
As already pointed out, the applicant
offers various accredited National Qualifications Framework (NQF)
level courses ranging from
NQF level 2 up to NQF level 5 at its
campuses and at its distance learning centre.
THE
FIRST RESPONDENT
[8]
The
first respondent is incorrectly cited in the papers and should have
been cited as Xpertease Skills Development and Mentoring
CC (and
later iCollege). It describes itself as an internet-based business
that provides E-Learning courses to consumers located
worldwide for
international, technology vendor specific information technology
certifications.
[2]
It currently employs 3 individuals in South Africa, 7 in Bangladesh,
5 in India and 1 in the United States.
[9]
Both
XpertSkills and iCollege are the respondent’s trading entities
and not corporate entities. iCollege was created and registered
as
the domain
www.icollege.co.za
on
13 January 2012. The domain name
www.icollege.co
was
registered later on 20 September 2014. iCollege is an expansion of
the respondent’s business. The respondent trades using
the
following marks:
(Please
refer to pdf)
[10]
The respondent does not present
classroom-based tuition, does not offer locally (NQF) accredited
qualifications and does not offer
education products on topics other
than information technology towards vender specific certifications.
The respondent conducts
business online exclusively. The respondent
explains that it commenced its business in 2005 and as ExpertSkills
operated as an
authorised Microsoft Partner for Learning Solutions
(CPLS) and specialised in “
presenting
instructor-led, classroom based training programs to predominantly
individuals employed as technology specialists within
technical
departments of corporate companies as well as organisations providing
technology solutions.”
The
primary objective of the training initially was to equip students
with technical skills required to become Microsoft technology
engineers and programmers specialising in specific Microsoft
technologies and become certified as such. The learning materials
are
all sourced from third party vendors. The learning products are
licensed to the respondent and iCollege resells them via its
web
publishers and website to consumers. The respondent stresses that it
does not and has never owed any of the learning products
it uses and
that it has always been the property of its suppliers: “
These
vendors develop the learning material which includes video-based
instructor presented E-learning courses (together with accompanying
presentations, quizzes, flashcards and educational games), course
material, live practice labs and practice exams.”
[11]
To become certified, an individual would
need to study and prepare and sit and pass official Microsoft exams.
The exams are proctored
by 3
rd
-party
examination centres with locations worldwide (currently this is
Pearson VUE). Pearson VUE has numerous centres around the
world. Once
the specific exams have been passed, the individual would then hold a
specific certification.
[12]
The respondent explains that as Microsoft
technologies evolved over the years, so did the certifications. The
current Microsoft
certifications are detailed online. The respondent
explains that there are thousands of tertiary institutions and
schools worldwide
that incorporate Microsoft-focused training in
their programmes. Currently there are 26 Microsoft official learning
partners in
South Africa.
[13]
The respondent further explains that,
initially its focus was on Microsoft technologies, but that the focus
has expanded to include
certifications from other vendors beyond
Microsoft. Some of the later certifications include certification
from CompTIA, Cisco,
Project Management Institute, Oracle, VMware,
the international Information System Security Certification
Consortium and ISACA.
All the certifications’ programs focus on
information technology and/or on vendor-specific technologies and
competencies,
and the exams are proctored by CertiPort, Pearson VUE
and Thomson Prometic. The respondent also explains that similar to
Microsoft,
thousands of certification programs are available from
multiple vendors such as those mentioned hereinabove.
[14]
The respondent explains that the reason for
choosing the name iCollege is the fact that its business is an
internet-based (represented
by the “
i”
)
institution providing specialized professional education (represented
by “
college
”)
focusing on preparing students for international certification exams
as XpertSkills has done for many years since 2005.
Currently, the
platform on which the iCollege website runs is hosted in a cloud
environment using “Microsoft Azure”
and does not
therefore reside in a particular territory.
[15]
Because the respondent does not present
class-room-based training – it specialises in selling
E-Learning to consumers online
– it submitted that there is a
“
huge difference
”
between the business of the applicant and the respondent. To restate:
The latter is not class-room bound whereas the former
is. It was
further submitted that the “
e-learning
centre
” of the applicant is a
belated and disingenuous attempt to show that the applicant renders
the same services as the respondent.
NATURE
OF THE BUSINESS OR SERVICES RENDERED
[16]
Putting aside for a moment the comparison
between the two trade marks in order to concentrate on the nature of
the business or services
rendered by the respective parties, what are
the differences and what are the similarities?
The
manner of teaching
[17]
The respondent, as already pointed out,
submits that there is a difference. The applicant presents
qualifications that are accredited
nationally on a certain NQF level
through teacher-led and classroom-based training at is various
campuses nationwide (17 campuses
located across six provinces).
[18]
iCollege (the respondent), on the other
hand, provides pre-recorded, instructor-presented, video courses,
live practice labs and
practice exams available online in digital
form only.
[19]
The applicant does not agree with this
assessment and points out in its papers that the respondent has
approximately 1 000
students at its distance learning centre.
The
content of the courses
[20]
The applicant presents courses based on
qualifications towards marketing, information technology, human
resource management and
contract centre skills. Some of the courses
mentioned by the applicant in its papers are: National Certificate:
Call Centre Support;
National Certificate: Business Administration
Services; Further Education and Training Certificate: Information
Technology (A+
Specialisation); Further Education and Training
Certificate: Public Administration; Further Education and Training
Certificate:
Human Resources Management and Practices Support;
Further Education and Training Certificate: Marketing; Further
Education and
Training Certificate: Information Technology (Technical
Support); Further Education and Training Certificate: Project
Management;
National Certificate: Wealth Management. All of these
courses are, as already indicated, NQF accredited.
[21]
As already pointed out, iCollege, the
respondent, offers exclusively online learning and focuses on
preparing customers for information
technology international
certifications exclusively. And to restate, none of its courses are
qualifications accredited in South
Africa. The respondent also points
out that approximately 97.9% of its customers originate from outside
of South Africa.
[22]
In its papers the applicant compares the
services rendered by it with those of the respondent with reference
to three areas. In
doing so, the applicant submits that the services
rendered by the respective parties are the same: (a) Information
Technology;
(b) End User Computing; and (c) Project Management.
However, when comparing the content of the courses with one another
in light
of what the applicant states in its papers, the actual
content of the courses does seem to differ. In respect of Information
Technology,
the respondent presents Microsoft courses whereas the
applicant does not. The same can be said regarding End User
Computing. In
respect of both End User Computing and Project
Management, the applicant merely claims that it presents a course in
“
End User Computing”
and “
Project Management”
without any particularity in respect of the content of the courses,
whereas the respondent for example uses in respect of Project
Management, “
The Complete Agile
and Project Management Professional Bundle”
and “
Project Management
Professional (PMP) 6th edition and Certified Associate in Project
Management (PMI-CAPM)”
consistent
with its claim that it sources the contents of its courses from third
party vendors.
[23]
It is not the applicant’s case on the
papers that it relies on the same educational sources (most notably
from Microsoft)
as those used by the respondent. In this regard I
have referred to the fact that the respondent exclusively uses third
party vendors
for its courses.
[24]
The applicant also does not claim that the
respondent offers education services in respect of a whole host of
other courses presented
by the applicant such as Business
Administration Services; Public Administration; Human Resources;
Further Education and Training
Services: Marketing; Project
Management and Wealth Management.
[25]
The applicant failed to address three
important issues: a) the glaring differences between the methods of
teaching (except for the
one campus); b) the status of the acquired
qualification once successfully passed; and c) the effect that the
accreditation of
courses would have on the notional customer in
choosing a particular course. I will return to these issues herein
below.
[26]
From the papers it would thus seem that the
main similarity between the business of the applicant and the
respondent is merely the
fact that both render services in relation
to “
education and training
services”
(I have already pointed
out that the applicant’s trade mark is registered in relation
to,
inter alia
,
“
education and training
services.”
) However, in my view,
it does not follow that the mere fact that both parties render
“
educational and training
services
” would mean that they in
fact render the same or similar educational and training services,
nor does it follow that the target
market for these services (the
potential notional customer) is the same.
CORRESPONDENCE
[27]
The applicant states that it discovered in
October 2017 that the respondent had started using the mark ICOLLEGE
in respect of education
and training services. And, because the trade
mark is, in their view, identical or confusingly similar, the
applicant then called
upon the respondent to cease using the name
ICOLLEGE.
[28]
In a letter dated 3 January 2018 the
applicant informed the respondent that the respondent’s
services under the “
ICOLLEGE”
trade mark were identical and/or confusingly similar to those of the
applicant and that the respondent’s use of the mark
and logos
wholly incorporated the most distinctive and distinguishing feature
of the applicant’s company name and the trade
mark and thus
amounted to unlawful competition and passing-off under the common
law. The letter further claimed that members of
the public would
consider the respondent’s business to be either associated with
the applicant or endorsed by the applicant,
thereby causing deception
and/or confusion in the marketplace.
[29]
The respondent refused to comply with the
demand and in its reply on 11 January 2018 claimed that the word
“
iCollege”
is used ubiquitously on the internet. The respondent further claimed
that a Google search reflected that universities used these
words
often and that it is often used for online course offerings: The word
is, according to the respondent, a common English word
not capable of
trade mark protection. Furthermore, the word has been assigned a
dictionary meaning on the internet. It is also
pointed out by the
respondent that section 34(2) of the Act provides protection to the
respondent in that the respondent uses the
word “
ICOLLEGE”
to indicate its intended purposes namely of services provided over
the internet: whereas the applicant offers instructor led courses,
the respondent offers e-learning courses. The letter concludes by
stating that the respondent will therefore not comply with the
demands set out in the letter of demand dated 3 January 2018.
[30]
In reply to this letter and on 13 March
2018, the applicant confirmed that it owns the “
ICOLLEGE”
trade mark by virtue of its trade mark registration no 2013/32192 in
class 41. Furthermore, the applicant’s common law rights
grant
the applicant the exclusive right to use the “
ICOLLEGE”
trade mark in South Africa in respect of education and related
services. The applicant thus rejected the respondent’s
contention
that the “
ICOLLEGE”
trade mark does not qualify for registration on the basis that it is
descriptive. The applicant further points out in this letter
that its
own research revealed that only one other entity is using the mark in
the United States. The applicant further pointed
out that if an
internet search is limited to South Africa only, the results of the
search revealed only two entities use the “
ICOLLEGE”
mark and that is the applicant and the respondent. The letter ends
off with the applicant reiterating that the respondent’s
use of
the “
ICOLLEGE”
trade mark amounts to trade mark infringement in terms of section
34(1) of the Act and in addition, to unlawful competition and
passing
off under the common law in that members of the public will consider
the respondent’s business to be either associated
with, linked
to or endorsed by the applicant thereby causing deception and/or
confusion in the market place.
REJOINDER
AFFIDAVIT
[31]
On 16 March 2020 the respondent delivered a
so-called “
Rejoinder Affidavit”
(a fourth affidavit). The applicant
took issue with this further affidavit by way of a Rule 30 notice and
opposed the admission
of this further affidavit and has, to this
effect, delivered a notice in terms of Rule 6(5)(d)(iii).
[32]
Although much is made in the papers and the written heads of argument
about the further
affidavit, nothing much turned on this and the
court was not asked to specifically make a finding on this point. I
will therefore
turn to what is really in dispute in this matter.
TRADE
MARK INFRINGEMENT: APPLICABLE LEGAL PRINCIPLES
[33]
It
appears from the Notice of Motion that the applicant casted its net
as wide as possible to rely on all three sub-paragraphs of
section 34
to substantiate the relief sought.
Although
the Notice of Motion premises the relief sought on section 34(1)(a);
(b) and (c), the argument mainly focused on the infringement
as
contemplated in section 34(1)(a).
[3]
The applicant in principle argued that the marks are identical or so
nearly resemble each other as to be likely to deceive or cause
confusion. In addition, the marks are used in respect of “
identical
services”
namely education services covered by virtue of its registration. It
was further submitted that the respondent’s use of the
ICOLLEGE
trade mark is calculated to take unfair advantage and/or be
detrimental to the distinctive character of the repute of
the
applicant’s trade mark registration.
GENERAL
[34]
Section 34(1)(a), (b) and (c) of the Act provides
as follows:
“
(1)
The rights acquired by registration of a trade mark shall be
infringed by–
(a)
the unauthorized use in the course of
trade in relation to goods or services in respect of which the trade
mark is registered, of
an identical mark or of a mark so nearly
resembling it as to be likely to deceive or cause confusion;
(b)
the unauthorized use of a mark which is
identical or similar to the trade mark registered, in the course of
trade in relation to
goods or services which are so similar to the
goods or services in respect of which the trade mark is registered,
that in such
use there exists the likelihood of deception or
confusion;
(c)
the unauthorized use in the course of trade in
relation to any goods or services of a mark which is identical or
similar to a trade
mark registered, if such trade mark is well known
in the Republic and the use of the said mark would be likely to take
unfair advantage
of, or be detrimental to, the distinctive character
or the repute of the registered trade mark, notwithstanding the
absence of
confusion or deception: Provided that the provisions of
this paragraph shall not apply to a trade mark referred to in section
70(2).”
[35]
Section 34(3)(a) provides that where a registered
mark has been infringed, a court may grant the trade mark proprietor
relief in
the form of an interdict. Section 34(3)(b); (c) and (d)
provides that the court may order delivery up of any material bearing
the
infringing mark, damages and/or an enquiry into damages.
[36]
The
infringement provided for in section 34(1)(a) and (b) requires that a
respondent uses the infringing mark in relation to goods
or services
which are either identical or so similar to the goods and services in
respect of which the trade mark has been registered,
that there is a
likelihood to cause deception or confusion.
[4]
[37]
Section
34(1)(a) provides for primary infringement protection in that it
makes provision for the protection of the proprietor’s
rights
acquired by the registration of a trade mark and is thus aimed at
protecting the business of the proprietor of the trade
mark in
respect of particular goods or services.
[5]
In
respect of section 34(1)(b) the infringement is not limited to the
precise goods or services covered by the trade mark registration.
The
goods or services rendered by the respondent must, however, be so
similar to the goods or services in respect of which the trade
mark
is registered that there exists the likelihood of deception or
confusion.
In
respect of the infringement provided for in section 34(1)(c) the
proprietor must show that the mark is well-known in South Africa
as
explained by the
court
in
Mettenheimer
and Another v Zonquasdrif Vineyards CC and Others
:
[6]
“
[11]
The respondent clearly used its impugned mark in the course of trade
and it is not suggested that it had been authorised by
the appellants
to do so. That limits the enquiry to the issue of confusing
similarity. Unlike s 34(1)(a), the provisions of s 34(1)(b) do
not require that the offending mark be used in relation to goods in
the class for which the trade mark had been registered. It
contemplates two elements, namely, (a) a mark identical or
similar to the trade mark used in relation (b) to goods
which are so similar to those for which it had been registered, that
it gives rise to a likelihood of deception or confusion. As
to the
relationship between these two elements, I agree with the sentiments
expressed by Thring J when he said in New Media
Publishing (Pty)
Ltd v Eating Out Web Services CC
[2005] ZAWCHC 20
;
2005 (5) SA 388
(C) at 394C –
F:
'There
is, it seems to me, an interdependence between the two legs of the
inquiry: the less the similarity between the respective
goods or
services of the parties, the greater will be the degree of
resemblance required between their respective marks before
it can be
said that there is a likelihood of deception or confusion in the use
of the allegedly offending mark, and vice
versa. Of course,
if the respective goods or services of the parties are so dissimilar
to each other that there is no likelihood
of deception or confusion,
the use by the respondent even of a mark which is identical to the
applicant's registered mark will
not constitute an infringement;
also, if the two marks are sufficiently dissimilar to each other no
amount of similarity between
the respective goods or services of
the parties will suffice to bring about an infringement....'”
[38]
The applicant’s trade mark is registered
in
respect of,
inter alia
,
education and training services hence the applicant’s reliance
on the primary protection granted in section 34(1)(a).
[39]
As will be pointed out herein below, whilst
both the applicant and the respondent use their trade marks in
respect of “education
and training services” (in respect
of which the applicant registered its trade mark), the educational /
academic products
and services presented by the applicant and the
respondent are not identical, nor is the training vehicle by which
the different
educational services are offered the same. Most
importantly, the educational status acquired by the courses presented
by the applicant
and the respondent is different: the applicant’s
courses are NQF accredited whilst the respondent’s courses do
not
acquire such accreditation; the qualification accredited by the
third party vendors such as Microsoft certifies or validates a
person’s knowledge and skills to work with specific Microsoft
technologies (or in respect of any of the other courses).
COMPARISON
BETWEEN THE TRADE MARKS
[40]
The
general test to be applied in establishing whether trademarks are
deceptively or confusingly similar is set out by the court
in the
often-quoted decision of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
:
[7]
“
In
an infringement action the onus is on the plaintiff to show the
probability or likelihood of deception or confusion. It is not
incumbent upon the plaintiff to show that every person interested or
concerned (usually as customer) in the class of goods for
which his
trade mark has been registered would probably be deceived or
confused. It is sufficient if the probabilities establish
that a
substantial number of such persons will be deceived or confused. The
concept of deception or confusion is not limited to
inducing in the
minds of interested persons the erroneous belief or impression that
the goods in relation to which the defendant's
mark is used are the
goods of the proprietor of the registered mark, ie the plaintiff, or
that there is a material connection between
the defendant's goods and
the proprietor of the registered mark; it is enough for the plaintiff
to show that a substantial number
of persons will probably be
confused as to the origin of the goods or the existence or
nonexistence of such a connection.
The
determination of these questions involves essentially a comparison
between the mark used by the defendant and the registered
mark and,
having regard to the similarities and differences in the two marks,
an assessment of the impact which the defendant's
mark would make
upon the average type of customer who would be likely to purchase the
kind of goods to which the marks are applied.
This notional customer
must be conceived of as a person of average intelligence, having
proper eyesight and buying with ordinary
caution. The comparison must
be made with reference to the sense, sound and appearance of the
marks. The marks must be viewed as
they would be encountered in the
market place and against the background of relevant surrounding
circumstances. The marks must
not only be considered side by side,
but also separately. It must be borne in mind that the ordinary
purchaser may encounter goods,
bearing the defendant's mark, with an
imperfect recollection of the registered mark and due allowance must
be made for this. If
each of the marks contains a main or dominant
feature or idea the likely impact made by this on the mind of the
customer must be
taken into account. As it has been put, marks are
remembered rather by general impressions or by some significant or
striking feature
than by a photographic recollection of the whole.
And finally consideration must be given to the manner in which the
marks are
likely to be employed as, for example, the use of name
marks in conjunction with a generic description of the goods.”
And as stated in
Adcock Ingram Ltd v Suresh
Patel t/a Dolly Lou
[8]
–
“
(a)
person or persons will be deceived into thinking that
the respondent's product is that of the applicant or where there is a
material
connection between the respondent's product and the
applicant's as a manufacturer and marketer of the product in issue”.
[41]
The onus is on the applicant as explained
in
Plascon
:
“
In
an infringement action the onus is on the plaintiff to show
the probability or likelihood of deception or confusion.
It is not
incumbent upon the plaintiff to show that every person interested or
concerned (usually as customer) in the class of
for which his trade
mark has been registered would probably be deceived or confused. It
is sufficient if the probabilities establish
that a substantial
number of such persons will be deceived or confused. The concept of
deception or confusion is not limited to
inducing in the minds of
interested persons the erroneous belief or impression that the goods
in relation to which the defendant's
mark is used are the goods of
the proprietor of the registered mark, ie the plaintiff, or that
there is a material connection between
the defendant's goods and the
proprietor of the registered mark; it is enough for the plaintiff to
show that a substantial number
of persons will probably be confused
as to the origin of the goods or the existence or non-existence of
such a connection.”
[9]
[42]
The enquiry
into confusingly similarity comprises of two legs that are
interconnected: This was explained as follows by the court
in
New
Media Publishing (Pty) Ltd v Eating Out Web Services CC
:
[10]
“
The
enquiry in this matter consists of two separate but closely
interrelated questions: first, are the two marks identical or
sufficiently
similar to one another; and secondly, is the
respondent's mark being used unauthorisedly in the course of trade in
relation
to services which are so similar to the applicant's goods in
respect of which its mark is registered that in such use there exists
the likelihood of deception or confusion? There is no question here
but that the respondent is using its mark without the applicant's
authority and is doing so in the course of trade. There is, it seems
to me, an interdependence between the two legs of the inquiry:
the less the similarity between the respective goods or services of
the parties, the greater will be the degree of resemblance
required
between their respective marks before it can be said that there is a
likelihood of deception or confusion in the use of
the allegedly
offending mark, and vice versa. Of course, if the respective
goods or services of the parties are so dissimilar
to each other
that there is no likelihood of deception or confusion, the use by the
respondent even of a mark which is identical
to the applicant's
registered mark will not constitute an infringement; also, if the two
marks are sufficiently dissimilar to each
other no amount of
similarity between the respective goods or services of the parties
will suffice to bring about an infringement.
I respectfully
agree with the learned authors of Webster and Page South African
Law of Trade Marks 4th ed para 12.23
(at 12-41), where they say,
with reference to s 34(1)(b) of the Act:
'(O)n
a proper interpretation of the South African section the degree of
resemblance between the marks and the degree of resemblance
between
the goods or services must be such that their combined effect will be
to produce a likelihood of deception or confusion
when that mark is
used on those goods or services.'
I
also agree with Mr Sholto-Douglas, who appears for the
applicant, that the proper approach in a trade mark infringement case
of this kind is to compare the applicant's registered mark and any
fair notional use of it, on the one hand, with the allegedly
offending mark and the manner in which it is actually used by the
respondent, on the other. For the purposes of this enquiry
distinctiveness
on the part of the registered mark is assumed, for
distinctiveness must be taken to have been established as required
by s
9 of the Act at the time of registration.”
[43]
In
comparing the marks to determine whether such confusion or deception
is likely to arise (the second leg of the enquiry), the
court must
have regard to the impact which the marks would make on the so-called
“notional customer” of average intelligence
having proper
eyesight and buying with ordinary caution and who is likely to buy
the goods or use the services to which the marks
are applied.
[11]
The average consumer of the goods or services in question
[12]
must be deemed to be reasonably well informed and reasonably
circumspect and observant. But,
a
court should bear in mind that the average consumer does not
necessarily have at its disposal the two marks to make a comparison
sought to be made
and
must instead rely upon the imperfect picture of them he has kept in
his mind, and whose attention varies according to the category
of
goods or services in question.
[13]
The
court in
American
Chewing Products Corporation v American Chicle Company
[14]
explains:
“…
The
Court must not only consider the marks when placed side by side,
but must have regard to the position of a person who might
at
one time see or hear one of the marks and later, possibly with an
imperfect recollection of that mark, come across the other
mark.”
[44]
When
comparing the marks, they must “
be
appreciated globally”
considering
the visual, aural or conceptual similarity of the marks.
[15]
As the court in
Plascon
stated: “The comparison must be made with reference to the
sense, sound and appearance of the marks. The marks must be viewed
as
they would be encountered in the marketplace and against the
background of relevant surrounding circumstances. The marks must
not
only be considered side by side, but also separately.”
[16]
This does not mean that the two marks should be scrutinized under a
magnifying glass. The court in
Klimax
Manufacturing Ltd and Another v Van Rensburg and Another
[17]
explains
that the emphasis should be on the general appearance of the two
marks:
“
[30]
It follows, therefore, that the general impression of the two marks
should be considered. The enquiry is not whether there
are
differences, but whether the general appearance is such that a person
looking casually at the marks (with an imperfect recollection),
would
be deceived.”
[45]
The
question of the likelihood of confusion or deception is a matter of
first impression. A court should therefore not peer too
closely at
the marks to find similarities or differences.
[18]
As the court in
Sabel
[19]
explained:
“
.
. . (T)he perception of marks in the mind of the average consumer of
the type of goods or services plays a decisive role in the
global
appreciation of the likelihood of confusion. The average consumer
normally perceives a mark as a whole and does not
proceed to analyse
its various details.”
[46]
Ultimately,
the court is required to make a value judgment.
[20]
In considering whether there is a likelihood of confusion or
deception, the court is required to notionally transport itself into
the marketplace and stand in the shoes of a potential customer
[21]
and, in doing so, the court must be mindful of the fact that it is
the dominant, overall or central feature of a mark that is likely
to
make an impact on the consumers mind.
[22]
The
court in
Adidas
Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Ltd
[23]
explains:
“
[t]he
marks must be considered as wholes; one must look for the main idea,
or the general impression, conveyed to the mind by each
of the marks
and at the essential features, rather than the exact details, of
each.”
[47]
From
the aforegoing it thus appears that deception or confusion will arise
where there is a probability that the notional consumer
viewing the
trademarks will think that the goods or services of one producer are
that of another
or
that there is a material connection between the products or services
of the one and those of another
or
that there is some connection or association between the goods or
services from different producers.
[24]
This is in keeping with the essential function of a trade mark and
that is to indicate the origin of the goods in connection with
which
it is used.
The court in
The
Upjohn Company v Merck and Another
[25]
explains:
“
In
considering whether the use of the respondent's mark would be likely
to deceive or cause confusion, regard must be had to the
essential function of a trade mark, namely to indicate the origin of
the goods in connection with which it is used. It is said
to be a
badge of origin.”
COMPARISON
OF THE TWO MARKS
[48]
At issue here is the comparison between the
following marks:
(the
applicant’s registered marks)
(please refer to pdf)
v
(the
respondent’s marks)
[49]
The common denominator in both the names is the combination of the
pre-fix “
i”
and the word “
college”
(the “
i”
referring to the internet). Apart from
the obvious similarity between the two marks with reference to the
words –“
iCollege
” and “
ICOLLEGE
”
(albeit that the font and casing are different) there is no visual or
conceptional similarity between the pictures accompanying
the written
words particularly having regard to their positioning, colour and
design: in the applicant’s trade mark the picture
is on top of
the words whereas in the respondent’s trade mark it is in front
of the mark.
[50]
But for the
word iCollege / ICOLLEGE, the two marks are not, in my view, similar.
The ultimate test however is, as stated by the
court in
Cowbell
,
[26]
whether, on comparison of the two marks, there is a likelihood of
confusion if both marks were used together in the ordinary course
of
business particularly in circumstances where both these marks are
used (as in this matter) in relation to “education and
training
services”. See
Bata
Ltd v Face Fashions CC and Another
[27]
where the court explained as follows:
“
[8]
The only question that has to be decided in respect of the alleged
infringements under s 34(1)(a) is whether the appellant
has
established that a substantial number of persons will probably be
deceived into believing or confused as to whether there is
a material
connection in the course of trade between the respondents' clothing
and the appellant's trade mark (see Plascon-Evans at
640G -
I).”
[51]
It is
important, as pointed out by the court in
Discovery
,
[28]
to contrast the “
relevance
of ‘use as a trade mark’”
i.e. that “
trade
mark use (as an indication of origin [badge of honour])”
is to be distinguished (or contrasted) with “
descriptive
use”
.
This accords with what is stated in section 2 of the Act which
defines a trade mark as –
“
'trade
mark'
, other than a certification trade mark or a
collective trade mark, means a mark used or proposed to be used by a
person in relation
to goods or services 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;”
[52]
Trade
mark use is thus the use of a registered trade mark to identify the
origin of the goods, in the sense that it establishes
a material link
between the mark and the goods or services to which it applies.
Hence, as the court said in
Discovery
[29]
“…
the
use of a mark purely for the purposes of describing the goods is not
regarded as use as a trade mark”
.
The important purpose of trade mark use was confirmed by the court in
Verimark
(Pty) Ltd v BMW AGBMW AG v Verimark (Pty) Ltd
[30]
as
follows:
“
[5]
It is trite that a trade mark serves as a badge of origin and that
trade mark law does not give copyright-like protection. Section
34(1)(a), which deals with primary infringement and gives in a sense
absolute protection, can, therefore, not be interpreted to
give
greater protection than that which is necessary for attaining the
purpose of a trade mark registration, namely protecting
the mark as a
badge of origin. In Anheuser-Busch the ECJ was asked to
determine the conditions under which the proprietor
of a trade mark
has an exclusive right to prevent a third party from using his trade
mark without his consent under a primary infringement
provision. The
ECJ affirmed (in para 59) that
'the
exclusive right conferred by a trade mark was intended to enable the
trade mark proprietor to protect his specific interests
as
proprietor, that is, to ensure that the trade mark can fulfil its
functions and that, therefore, the exercise of that right
must be
reserved to cases in which a third party's use of the sign affects or
is liable to affect the functions of the trade mark,
in particular
its essential function of guaranteeing to consumers the origin of the
goods'.
That
is the case, the ECJ said (in para 60), where the use of the mark is
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.”
[53]
In the present instance the outstanding feature of both
trademarks is the word “
college”
–both with
the prefix “
i”
which refers to the internet. The
word “
college”
is a common-place word mainly used
as a noun to describe an
educational institution where students (or scholars) receive
educational training
. The “
marketplace”
in
the present instance is the educational sphere or environment.
Put
differently, the word “
college”
,
in my view, is a common-placed word purely used to describe the
“
vehicle”
(the nature of the educational institution) through which educational
services are presented and is in that sense similar to a
university
(tertiary education) or a school, all of which offer educational
services albeit on different educational levels. The
word “
college”
is therefore not distinctive enough on its own (even if used with the
prefix “
i”
)
to distinguish its products (educational courses) from that of the
respondent. The word “
college”
is not descriptive of any particular educational services or courses.
The word “
college”
is, as already stated, purely descriptive of the type of educational
institution that offers certain educational services and training
which may include academic, non-academic and/or practical courses. It
is also noteworthy to point out that the applicant is cited
in the
papers as “
ICOLLEGE
(PTY) LTD”
(the
proprietor of the trade mark “
iCOLLEGE”
).
It is also instructive that the applicant further describes itself as
a “
college”
:
“
a registered
Private Further Education and Training (FET) College”
.
The fact that the applicant describes itself as a “
college”
highlights the descriptive nature of the word as a vehicle or
institution to present educational services and training. Some of
the
definitions offered by Oxford Advanced Learner's Dictionary to define
the word “
college”
(an educational institution) includes the following:
“
(in
the UK) a place where students go to study or to receive training
after they have left school… SEE ALSO
college
of further education
,
college
of higher education
,
community
college (1)
,
sixth-form
college
,
technical
college
,
tertiary
college
”
“
(often
in names) (in the US) a university where students can study for a
degree after they have left school.”
[54]
I am also not persuaded that the use of the
word “
college”
(even with the prefix “
i”
)
establishes a “material link” between the trade mark and
the product (the educational and training services) of the
applicant
to the extent that it can be said it is a “
badge
of origin.”
[55]
But,
ultimately, the question is how the notional customer (in this case a
prospective learner or student) will perceive the trade
mark (even
though the trademarks consist of a common-place word that is, in my
view, purely descriptive).
[31]
NOTIONAL
CUSTOMER
[56]
This brings me to a consideration of who
the “
notional”
customer is. Ultimately, the onus is on the applicant to establish
for purposes of an alleged infringement under section 34(a)
of the
Act that a substantial number of persons will probably be deceived
into believing or being confused as to whether there
is a material
connection in the course of trade between the applicant’s trade
mark and the educational or training services
presented by the
respondent.
[57]
I
have already referred to the fact that the courts generally describe
the notional customer as the “
average
type of customer who would be likely to purchase the kind of goods to
which the marks are applied. This notional customer
must be conceived
of as a person of average intelligence, having proper eyesight and
buying with ordinary caution.”
[32]
[58]
Unfortunately,
the applicant did not advance any substantial submissions in respect
of
who
the potential or notional customer for education services in the
present matter is. Who the notional customer is must therefore
be
determined with reference to the relevant surrounding circumstances
in the marketplace where the trade marks
in
casu
are encountered.
[33]
I
should also mention in passing that the applicant has not placed any
evidence before the court about any alleged customer confusion
as was
done by the applicant in
Yuppiechef
(although
the court in that case was unmoved by the evidence of confusion
amongst several customers).
[34]
[59]
From the
papers it appears that the alleged infringement was discovered when a
search was done on the internet. The applicant explains
in its papers
that it supports its trading activities in South Africa by using the
internet, Twitter, Facebook and various publications.
It is
significant to note that the applicant discovered the alleged
infringement when it clicked on the URL for the domain
ICOLLEGE.CO.ZA.
The applicant was then directed to the website
http://www.icollege.co/
.
Although I take note of the fact that the applicant also makes use of
more traditional forms of advertising, it would seem safe
to conclude
that the bulk of its advertising is done via the internet. From the
respondent’s papers it appears that it exclusively
makes use of
the internet to conduct its trade.
[60]
Although, as I have indicated, the applicant did not pertinently
address the question who
the notional consumer in the present matter
is, it would seem that, in light of the fact that the respondent
exclusively operates
through the internet, the possible confusion
between the two trademarks will arise when a potential customer uses
the internet
to search for educational or academic services and
possibly by typing in a word such as “
college”
.
This is, as I have indicated, how the applicant came to know that the
respondent is using the trade mark “
iCollege
” in
respect of the courses offered by it. In the letter dated 3 January
2018, the applicant conveyed the following to the
respondent:
“
8. It has come
to our client’s attention that you are now using our client’s
registered trade mark on your website,
i.e
http//www.icollege.co.
A brief search of the website
http://www.icollege.co.za
,
which directs one to the website
http//www.icollege.co,
reveals that you trade under the name ICOLLEGE in relation to
educational services”.
[61]
I should also point out that a substantial portion of the applicant’s
papers is devoted
to demonstrating to the court, with reference to
the respondent’s website and domain, how the respondent uses
the ICOLLEGE
trade mark on its (the respondent’s) website. I
should also mention that it is not the applicant’s case that,
apart
from the fact that the ICOLLEGE mark is displayed on the
respondent’s website, the mark is also used on more traditional
advertising products such as pamphlets.
[62]
In light of the aforegoing it can therefore safely be concluded that
it will predominately
be an internet user searching for educational
services who may be redirected to the respondent’s website. The
question then
arises how discerning is the internet user and how
likely is it that a potential customer doing a search on the internet
for educational
products and/or services may be confused into
believing that there is a material link between the applicant’s
trade mark
and the respondent’s educational services? The court
in
Yuppiechef
accepted that a customer who shops online may
not be so easily confused into distinguishing between different
products:
“
[36]
In considering the likelihood of deception or confusion it is
necessary to ask whether the nature of the two enterprises, that
is,
online retailers, affects the matter. The type of customer is one who
is moderately familiar with computers and not afraid
to shop
online. They will be familiar with search engines and willing to
visit several sites to find what they are looking for.
They will be
aware that the first suggestion by the search engine is not
necessarily their target and will probably have some appreciation
of
the distinction between advertisements and other listings. They will
also be familiar with drop down menus and how to navigate
these to
find the desired site. Lastly I think they will accept that
occasionally haste, inadequate typing skills or failure to
read
thoroughly may take them to a destination other than the one they had
in mind. If they encounter separate websites with no
hyperlink
connecting them they will not expect them to be connected.
[37] There
is an inherent safeguard against confusion between sites in the light
of the mechanism for purchasing items on online
retail sites. This is
not as simple as handing over a credit card or cash at a shop
counter. Substantial security features are
built into the process
because it involves the use of a credit card. The purchaser will have
to create an identity and provide
information such as their name,
address (both physical and email), telephone number and importantly
credit or debit card details.
Usually the identity will include a
password and these details are retained by the online retailer. As
the customer selects an
item to purchase it is placed in a
metaphorical basket, trolley or cart and the customer is asked
whether they wish to continue
shopping or proceed to check out. At
every stage of the check out and payment process details will have to
be confirmed. So the
shopping process always provides time for
reflection. A person confronted at every stage of this process with
Yuppie Gadgets is
unlikely at the end of this to believe that they
are dealing with Yuppiechef. When dealing with return customers the
process is
not repeated as they are usually invited to log in to
their existing account. So the possibility of confusion is
restricted
to persons being led astray in initially accessing the
site.
[38] All
of these features to my mind serve to minimise the risk of deception
or confusion. At the end of the day the argument
revolved around the
centrality of the word 'yuppie' in Yuppiechef's brand identity. As to
that there are many cases in which it
has been said that it is not
the purpose of trade marks or copyright to enable people to secure
monopolies on the commons of the
English language. Yuppie is an
ordinary word in common use. And as Lord Simonds said in Office
Cleaning Services:
'So
long as descriptive words are used by two traders as part of their
respective trade names, it is possible that some members
of the
public will be confused whatever the differentiating words may be. I
am ready to believe that in this case genuine mistakes
were made. I
think they ought not to have been made.'”
[63]
Apart
from the fact that the applicant placed no evidence before the court
to substantiate a likelihood of confusion within the
context of this
matter, I am not persuaded that any customer would be confused into
believing that the educational services presented
by the respondent
are somehow linked to the applicant. I have already pointed out that
there are material differences between the
content of the courses
presented by the parties as well as their respective teaching
methods. The common element of the marks (“
college”
or the composite mark “
icollege”
)
is, at best, weak in that it is, as already pointed out, descriptive
of the educational vehicle both parties use to offer their
educational services. The mark does not describe the applicant’s
or respondent’s educational services. In fact, the
trade mark
does not tell the potential customer anything about the product.
[35]
As such, the trademarks do not serve as a badge of origin of the
educational services it presents. Adding the prefix “
i”
(composite mark) also does nothing more than to refer to the
internet.
[64]
Accordingly,
the applicant has not discharged the onus of proof on a balance
of probabilities by showing that there is a likelihood
that a
substantial number of likely customers would be confused as to
whether the respondent's products are those of the applicant
or
whether there exists a material connection between the products or
services of the respondent and that of the applicant as a
manufacturer or originator of this type of product.
[36]
The applicant’s contentions based on section 34(1)(a) of the
Act must therefore fail. For the same reasons the applicant’s
contentions based on section 34(1)(b) of the Act must likewise fail.
PASSING
OFF
[65]
This brings me to section 34(1)(c) of the
Act – also referred to as the anti-dilution provision. Very
little argument was
presented in respect of this section and only
scant reference is made to this section in the papers. The fact is
that the applicant
merely states in the papers that “
the
distinctive character of the ICOLLEGE Trade Marks is diluted and
compromised by the Respondent’s actions and as such,
it cannot
be permitted to continue”
. It is
further stated in the papers that the applicant has a “
substantial
reputation and goodwill”
and that
the respondent is unlawfully passing itself and its business off as
being related to the applicant.
[66]
The case advanced by the applicant in its heads of argument is this:
“
Also
what must be accepted is the fact that the applicant’s ICOLLEGE
trade mark qualifies as a well-known mark. This then
would also
entitle the applicant to relief under section 34(1)(c) of the Trade
Marks Act and on the grounds of passing-off. This
observation is
really only relevant insofar as the applicant was unable to meet the
requirements of section 34(1)(a) – which
it has in fact met.”
[67]
As the
applicant has not met the requirements of section 34(1)(a) of the
Act, the question then is whether the applicant has made
out a case
for passing off notwithstanding the absence of confusion or
deception. The court in
Laugh
It Off Promotions
CC v
South African Breweries International (Finance) BV t/a Sabmark
International
[37]
explains that this section is not concerned with either origin or
confusion: “
It
protects the economic value of a trade mark, more particularly
its reputation and its advertising value or selling power.”
[68]
The test for passing off with regards to section 34(1)(c) is set out
by the court in
Laugh It Off Promotions
:
“
[20]
This provision has arisen but parenthetically in our case law. At
first blush its meaning is clear. In order to establish infringement,
the owner of the trade mark must establish:
(a) the
unauthorised use by the defendant of a mark
(b) in
the course of trade
(c) in
relation to any goods or services
(d) the
mark must be identical or similar to a registered trade mark
(e) the
trade mark must be well known in the Republic, and
(f) the
use of the defendant's mark would be likely to take unfair advantage
of, or be detrimental to, the distinctive character
or the repute of
the registered trade mark.
As
mentioned, the defendant's use need not be in relation
to similar goods or services and the liability is not
dependent
on confusion or deception.”
[69]
No particulars were placed before the court
to substantiate in what way the use of the mark by the respondent
would likely result
in it (the respondent) taking unfair advantage of
the reputation of the applicant’s trade mark and in what way
the use would
be detrimental to the distinctive character or repute
of the applicant’s trade mark. The applicant’s reliance
on section
34(1)(c) of the Act can therefore also not succeed.
[70]
In light of the conclusions reached, the relief sought in prayers 3,
4, 5 and 6 cannot
succeed. Costs should follow the result.
ORDER
[71]
In the event the following order is made:
1.
The application is dismissed.
2.
The applicant is to pay the costs of the respondent such costs
to
include
the costs occasioned by
the employment of senior counsel.
AC
BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Delivered
:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 19 July 2021.
APPEARANCES
Counsel
for Applicant:
ADV. PAOLA CIRONE
Instructed
by:
D M KISCH ATTORNEYS
Counsel
for 1
st
Respondent:
ADV. PAT ELLIS SC
Instructed
by:
NIXON & COLLINS ATTORNEYS
Date
of hearing:
11 MARCH 2021 (virtual hearing)
Date
of judgment:
19 JULY 2021
[1]
194
of 1993.
[2]
I
will refer to the first respondent as “the respondent”
and where applicable to the respondent as “iCollege”
as
the latter is the vehicle through which it presents its online
courses.
[3]
Paragraph
25
et
seq
of the heads of argument of the applicant.
[4]
Discovery
Holdings Ltd v Sanlam Ltd and Others
2015
(1) SA 365
(WCC) at para 31.
[5]
Rembrandt
Fabrikante en Handelaars (Edms) Bpk v Gulf Oil Corporation
1963
(3) SA 341
(A). at347
–
348.
[6]
2014
(2) SA 204
(SCA)
.
[7]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 640G – 641E.
[8]
[2005]
JOL 15298
(T) ) at 4 – 5.
[9]
Supra
n 7 at 640G – I..
[10]
[2005] ZAWCHC 20
;
2005
(5) SA 388
(C) at 394C–I.
[11]
Plascon
supra
n
7 at 640G
–
641E.
[12]
Sabel
BV v Puma AG
,
Rudolf
Dassler Sport
[1998] E.T.M.R. 1
at [23].
[13]
Lloyd
Schuhfabrik Meyer & Co GmbH v Klijsen Handel B.V.
[1999] EUECJ C-342/97
;
[2000] F.S.R. 77
at
[27]
.
[14]
1948
(2) SA 736 (A)
at
744.
[15]
Sabel
supra
n
13 at [23].
[16]
Plascon
supra
n
7 at 641.
[17]
2005
(4) SA 445 (O).
[18]
Adidas
AG and
Another v Pepkor Retail Limited
[2013]
JOL 30976
(SCA)
at [22].
[19]
Quoted
in
Cowbell
AG
v ICS Holdings Ltd
2001
(3) SA 941
(SCA)
at
para 14.
[20]
See
Yuppiechef
Holdings (Pty) Ltd v Yuppie Gadgets Holdings (Pty) Ltd (Formerly
Yuppie Stuff Online CC)
[2016]
JOL 36650
(SCA)
at
para
26.
[21]
Oude
Meester
Groep
Bpk & Another
v
SA Breweries
Ltd;
SA
Breweries Ltd and Another v Distillers Corporation (SA) Ltd and
Another
1973
(4) SA
145
(W) at 161C – E:
“
I
am required, notionally, to transport myself from the court room to
the market place, and to stand in the shoes or sit in the
chairs of
those who buy beer. I am to remember that the consumers of
beer, in South Africa, include white, black and coloured
people,
many of whom are uneducated or ill-educated, and some of whom use
English and Afrikaans imperfectly but interchangeably.
I must
remember the fact that not all beer drinkers are careful or logical
people, and that not all of them articulate clearly.
I think it
relevant to bear in mind, also, the fact that on a convivial
occasion, enlivened by the use of beer or spirits,
recollection
may fade and articulation may deteriorate with the passage of time.I
must ignore the advantages of looking at the
two relevant marks side
by side, and I must allow for the imperfect recollection which is
characteristic of most human beings.”
[22]
Cowbell
supra
n
21 at 947
–
948.
[23]
1976
(1) SA 530
(T) at 536B – C.
[24]
Juvena
Produits de Beaute SA v BLP Import & Export
1980 (3) SA 210
(T) at 217H
–
218H
[25]
1987
(3) SA 221
(T) at 227D – E.
[26]
Supra
n
21 at para 10.
[27]
[2000]
ZASCA 192.
[28]
Supra
n
4 at para 34.
[29]
Id.
[30]
2007
(6) SA 263 (SCA).
[31]
Verimark
supra
n 33 at para7.
[32]
Plascon
supra
n
7 at 641.
[33]
This
much is clear from what the court said in
Plascon
supra
n
7 at 641 :
“
The
marks must be viewed as they would be encountered in the market
place and against the background of relevant surrounding
circumstances.”
[34]
See
John Craig (Pty)
Ltd v Dupa Clothing Industries (Pty) Ltd
1977
(3) SA 144
(T) at 151H – 152A. The court, however, pointed out
that the “availability of evidence of actual confusion makes
the Court's task easier but evidence of actual confusion is not
essential.”
[35]
See
the discussion in
Adcock
Ingram Ltd v Suresh Patel t/a Dolly Lou
[2005] JOL 15298
(T) ) at 6.
See also
Oude
Meester Groep Bpk and Another v SA Breweries Ltd; SA Breweries
Ltd and Another v Distillers Corporation (SA) Ltd and
Another
1973
(4) SA 145 (W)
at
160G.
[37]
2005
(2) SA 46
(SCA) at para 13.