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[2016] ZAGPPHC 514
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Atlantic Industries v Pepsico Inc. (A479/2014) [2016] ZAGPPHC 514; 2016 BIP 169 (GP) (26 May 2016)
IN
TH E HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Appeal
Case No: A479/ 2014
Case
No
( a quo) :
48260/ 2008
Not
Reporteable
Not
of interest to other Judges
Revised
In the matter
between :
ATLANTIC IN
DUSTRIES
Appellant
(Respondent
in the cross-appeal)
and
PEPSICO IN
C.
Respondent
(Appellant
in the
cross-appeal)
J
U
DG
M
ENT
J W LOUW, J
(PRINSLOO J and MEYER J concurring)
[1] The
appellant, to whom I shall refer as Atlantic, is incorporated under
the laws of the Cayman Islands and is a wholly owned
subsidiary of
The Coca-Cola Company which is incorporated under the laws of the
State of Delaware, USA. The respondent, to whom
I shall refer as
Pepsico, is incorporated under the laws of the State of North
Carolina, USA. Atlantic and Pepsico are international
competitors in
the sale of soft drinks.
[2] Pepsico filed
trade mark applications with the South African Registrar of Trade
Marks for the registration of PEPSI TWIST (application
no.
2002/09809) and PEPSI TWIST label (application no. 2002/09810) in
class 32. The goods described in class 32 are
"Beers; mineral
and
aerated
waters
and
other
non-alcoholic
drinks; fruit
drinks
and fruit
juices; syrups
and other preparations for making beverages".
Atlantic was
at all relevant times the proprietor of registered trade marks nos.
80/0158 TWIST, 75/ 2905 LEMON TWIST and 86/7291
DIET TWIST, all in
class 32. Pepsico's applications were opposed by Atlantic on the
ground that Pepsico could not claim to be the
bona fide
proprietor
of any mark which incorporates Atlantic's registered TWIST marks
(relying on s 10(3) of the Trade Marks Act 194 of 1993
(the Act)) and
on the ground that the PESPSI TWIST marks are so similar to
Atlantic's TWIST marks that the use of PEPSI TWIST in
relation to the
same goods would be likely to deceive or cause confusion (relying on
s 10(14) of the Act) . Pepsico responded to
Atlantic's opposition by
applying for the removal of Atlantic's registered marks from the
Trade Marks Register in terms of s 24(1)
of the Act.
[3] On 11 August
2008 and at the request of the parties, the Registrar of Trade Marks
referred the opposition and removal proceedings
to the High Court in
terms of s 59( 2) of the Act. The matter was heard by Preller J , who
granted Pepsico's two trade mark applications
and dismissed its
application for the removal of Atlantic's registered marks. With the
leave of the court
a quo,
Atlantic appeals against the
order granting Pepsico's trade mark applications and Pepsico
cross-appeals against the order dismissing
its application for the
removal of Atlantic's registered marks from the register.
[4] The parties
are
ad
idem
that
the onus rests upon an applicant for registration of a trade mark to
establish that the proposed mark
qualifies
for registration. The onus therefore rested upon Pepsico to satisfy
the
court that it was the
bona
fide
proprietor
of the PEPSI TWIST marks
and
that there was no reasonable probability (as opposed to possibility)
of
confusion or deception.
[1]
The
parties were also in agreement that
in
rectification proceedings, the onus for establishing the invalidity
of
the
registration
is on
the applicant for
rectification,
in
casu
on
Pepsico.
[2]
[5] It is
convenient to first deal with Pepsico's cross-appeal. The court
a
quo
found that the evidence of Synovate (Pty) Ltd, which
Atlantic had commissioned to conduct a market survey, established
that a substantial
number of people who were interviewed associated
the word TWIST with Atlantic's products. The court further referred
to Atlantic's
evidence of sales of high quantities of soft drinks on
which its marks were used and concluded that Pepsico had failed to
discharge
the onus of proving that Atlantic's TWIST registrations
were invalid.
[6] Sec. 24(1) of
the Act provides as follows:
In the event of
non-insertion in or omission from the register of any entry, or of an
entry wrongly made in or wrongly remaining
on the register, or of any
error or defect in any entry in the register, any interested person
may apply to the court or, at the
option of the applicant and subject
to the provisions of section 59, in the prescribed manner, to the
registrar, for the desired
relief, and thereupon the court or the
registrar, as the case may be, may make such order for making,
removing or varying the entry
as it or he may deem fit.
[7] Pepsico
contends that Atlantic's trade mark registrations wrongly remain on
the register in view of the provisions of s10(1)
and 10( 2)(a) and
(b) of the Act, which provide the following :
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:
A mark which
does not constitute a trade mark;
a mark
which-
(a)
is
not capable of distinguishing within the meaning of section 9; or
(b)
consists
exclusively of a sign or an indication which may serve, in trade, to
designate the kind, quality, quantity, intended purpose,
value,
geographical origin or other characteristics of the goods or
services, or the mode or time of production of the goods or
of
rendering of the services.
[8] Pepsico's
case is, firstly, that Atlantic's registered TWIST marks do not
constitute trade marks by virtue of the fact they
are not capable of
distinguishing the goods in respect of which they are registered from
the same kind of goods connected in the
course of trade with any
other person because the word TWIST is descriptive of the goods in
respect of which it was registered.
The allegation that Atlantic 's
marks do not constitute trade marks is therefore limited to the
allegation that they are not capable
of distinguishing.It secondly
contends that Atlantic's registered marks should be removed from the
register on the ground that
they consist exclusively of a sign or a n
indication which may serve, in trade, to designate the kind, intended
purpose or other
characteristics of the goods of Atlantic's trade
mark registrations, i.e. that they have certain flavours or other
characteristics.In
the alternative to the order sought for the
removal of Atlantic's marks from the register, Pepsico seeks an order
that Atlantic
be directed to enter a disclaimer of the word TWIST in
respect of its registered marks.
[9] The TWIST
marks which Pepsico seeks to expunge from the register were
registered under the previous Trade Marks Act 62 of 1963
which
provided, in s 10 thereof, for the registration of distinctive marks
in Part A of the register and, in s 11 thereof, for
the registration
in Part B of the register, of marks which, in relation to the goods
or services in respect of which they are proposed
to be registered,
are capable of becoming registrable, through use, in Part A of the
register in respect of such goods or services.
Sec. 12 of the
previous Act provided:
(1) For purposes
of section 10 "distinctive" means adapted, in relation to
the goods or services in respect of which a
trade mark is registered,
to distinguish goods or services with which the proprietor of the
trade mark is or may be connected in
the course of trade from the
goods or services in the case of which no such connection subsists,
either generally or, where the
trade mark is registered or proposed
to be registered subject to limitations, in relation to use within
those limitations.
(2) In
determining whether a trade mark is distinctive as aforesaid, regard
may be had to the extent to which -
(a) the trade
mark is inherently adapted to distinguish; and
(b) by reason of
the use of the trade mark or of any other circumstance the trade mark
is or has become adapted to distinguish.
[ 10] Both of
Pepsico1s contentions in support of its claim that Atlantic's marks
should be expunged from the register, and also
the disclaimer which
it sought in the alternative, depend on whether the word TWIST is
merely descriptive and not capable of distinguishing
the goods in
respect of which Atlantic's marks were registered. In order to
establish that this is so, Pepsico relied on one of
the various
dictionary meanings ascribed to the word in the New Shorter Oxford
English Dictionary, which is
"a drink consisting of
a
mixture of two different spirits or other ingredients, such as
gin
and
brandy etc
[
1
1
]
It was submitted by Mr Mich
a
u,
who appeared for Pepsico, that the word
"twist"
is
an
ordinary everyday English word. That may be correct when the word is
used
a
s
a
verb, or,
when
used
as
a
noun,
to
refer
to
the
well
-known
dance of the sixties or to a twist of events. But it is not, as far
a
s
I am
a
ware,
an
ordinary English word which is used,
at
least not
i
n
South Africa, to refer to a drink consisting of a mixture of two
different spirits or other ingredients. This meaning of the word
does
not even appear in the South African Oxford English Dictionary.
Accordingly, no assistance can be derived from the dictionary
meanings of the word "twist". As was stated by Schreiner JA
in his dissenting judgment in
International
Tobacco
Company
of
SA
Ltd
v Wollheim and
others
[3]
:
'I have not been
able to derive assistance in this case from dictionaries. As is so
often the case, they recite a number of different
meanings or shades
of meaning. These sometimes suggest possibilities, and to that extent
are useful, but they do not often assist
in the discovery of 'the
ordinary' meaning, assuming such a discovery to be necessary or
helpful.'
In my view, the
mark TWIST is, and would have been when it was registered, inherently
adapted to distinguish.
[
1
2]
But even if
I
a
m
wrong in this regard, the evidence presented by Atlantic shows that
the m
a
rk
TWIST has, by use, become capable of distinguishing.
[4]
The
court
a
quo
referred
in this regard to the survey evidence which was presented by
Atlantic. Four hundred interviewees were shown a card with
the word
TWIST written on it and were
a
sked
whether they associated TWIST with any product.87.
75
°
/
o
associated TWIST with a product. Those interviewees were then asked
to identify
the product. 71.8°/o
identified TWIST with a soft drink.49.2°/o mentioned Atlantic's
LEMON TWIST product and 5.8% mentioned
its GRANADILLA TWIST product.
The court concluded that a substantial number of people associated
TWIST with Atlantic's products.
I respectfully agree with the court's
conclusion in this regard.
[13 ] Atlantic also
presented sales and advertising figures in relation to its marketing
of its TWIST products. Between 1999 and
2002, about 1.920 billion
cans or bottles of LEMON TWIST were sold. The Rand value of sales of
LEMON TWIST drinks between 2001
and 2002 was R812 million. The Rand
value of sales of LEMON TWIST and GRANADILLA TWIST sold between 2001
and 2006 was R2.672 billion.
There must clearly have been a large
scale exposure of the TWIST marks in relation to soft drinks. Mr.
Michau conceded that the
sales were very substantial.
[14] Apart from
its reliance on the dictionary meaning of the word TWIST, Pepsico did
not present evidence to show that the word
TWIST is not inherently
adapted to distinguish or that it has not, by reason of its use,
become capable f distinguishing, or that
it consists exclusively of
sign or an indication which may serve, in trade, to designate the
kind,intended purpose or other characteristics
of the goods of
Atlantic's trade mark registrations, .e. to designate that they are
certain flavours or other characteristics.
In my view, the court
a
quo
correctly held that Pepsico failed to discharge its onus in
this regard. he cross-appeal must therefore fail.
[ 15] I proceed
to deal with Atlantic's opposition to Pepsico's applications for
registration of PEPSI TWIST and PEPSI TWIST label.
As mentioned
earlier, Pepsico's applications are opposed by Atlantic on the ground
that Pepsico cannot claim to be the
bona
fide
proprietor
of any mark which incorporates Atlantic's registered TWIST marks
(relying on s 10(3) of the Act) and on the ground that
the PESPSI
TWIST marks are so similar to Atlantic's TWIST marks that the use of
PEPSI TWIST in relation to the same goods would
be likely to deceive
or cause confusion (relying on s 10( 14) of the Act).
[16] Sec. 10(14)
of the Act provides that a mark shall not be registered as a trade
mark if,
subject to the
provisions of section 14, [it is] a mark which is identical to a
registered trade mark belonging to a different proprietor
or so
similar thereto that the use thereof in relation to goods or services
in respect of which it is sought to be registered and
which are the
same as or similar to the goods or services in respect of which such
trade mark is registered, would be likely to
deceive or cause
confusion, unless the proprietor of such trade mark consents to the
registration of such mark.
[
1
7]
I
n
TPN
Group
(Pty)
Limited
v
Ebay
Inc
[5]
,
the following was said with regard
to
s
1
0(
1
4)
:
"[8] Two
inquiries are therefore necessary : are the two marks identical or
sufficiently similar, and are the services in respect
of which TPN
intends to use the RENTBAY mark the same as or similar to
the
services in
respect
of
which
eBay's marks
are
registered, so that there exists a likelihood of deception or
confusion?
I
n
New
Media Publishing (Pty )Ltding Out Web Services
CC
[6]
Thring
J said the following
[7]
:
'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 mark 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' .
The
dictum
was
approved of by the Supreme Court of Appeal in
Mettenheimer
and
Ano.
v
Zonquasdrif
Vineyards
and
Others.
[8]
"
[
1
8]It
was common cause that the goods for which Pepsico seeks registration
are essentially the sameas those in respect of which Atlantic's
TWIST
m
a
rks
are
registered. It is
also
common cause that the approach to the issue of the likelihood of
deception or confusion is the sa
me for
infringement and opposition proceedings.
I
n
Plascon-Evans
Paints Ltd v Van
R
iebeeck
Paints (Pty)
Ltd
[9]
,
Corbett
JA said the following at
640G
-
641
D
:
"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
non-existence 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
ma rk 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.
"
[19] In
Century
CityApartments Property Services
CC
&
another
v Century City Property Own ers' Association
[10]
Harms
DP referred with
approval to the
following
dictum
of
Laddie
J in
Compass
Publishing
BV
v
Compass
Logistics Ltd
[11]
:
"The
likelihood of confusion must be appreciated globally, taking account
of all relevant
factors. It must
be judged through the eyes of the average consumer of the goods or
services in question. That customer is to be
taken to be reasonably
well informed and reasonably circumspect and observant, but he may
have to rely upon an imperfect picture
or recollection of the marks.
The court should factor in the recognition that the average consumer
normally perceives a mark as
a whole and does not analyse its various
details. The visual, aural and conceptual similarities of the marks
must be assessed by
reference to the overall impressions created by
the marks bearing in mind their distinctive and dominant components.
Furthermore,
if the association between the
marks causes the
public to wrongly believe that the respective goods come from
the
same
or
economically
linked
undertakings,
there
is a
likelihood
of confusion."
[12]
[20]
I
n
Roodezandt
Ko-Operatiewe
Wynmakery Ltd v Robertson Winery (Pty) Ltd
and
Another
[13]
Brand
JA
said
the
following in
paras
[
4
]
-
[6]
:
"[4]
.......... 'Deception' will result, so it has been held, when the
similarity were to cause members of the purchasing public
to assume
that the goods bearing the two competing trademarks come from the
same source. 'Confusion', on the other hand, would
occur if these
members of the public will be caused to wonder if the goods had a
common origin (see eg
Oude Meester Groep Bpk v SA Breweries Ltd;
SA Breweries Ltd v Distillers Corporation (SA) Ltd
1973 (4) SA
145
(W) at 160H).[SJ The fundamental enquiry is therefore whether
Roodezandt's Robertson Hills mark so resembles the Winery's marks
incorporating the term 'Robertson' that, if the competing marks are
all used in relation to wine, such use would be likely to cause
deception or confusion.That determination involves a value judgment
(see eg
Cowbell
AG
v
JCS
Holdings
Ltd
2001 (3) SA 941
(SCA)
para 10). Considerations that could assist in the exercise of this
value judgment have been proposed in numerous decided
cases. One of
these cases is
Laboratoire
Lachartre
SA
v Armour-Dial Incorporated
1976 (
2) SA 744
(T) in which
Colman J sounded the following note of caution (at 746B-E) :
'We have had
ample time for full consideration and close comparison of the two
trademarks with which we are concerned. These advantages,
however,
carry their own dangers. They have caused us to look at the
trademarks with far greater care than they would be looked
at by the
members of the public whose probable reactions we are required to
assess, and with a far keener awareness of similarities
and
dissimilarities than such people would probably have as they go about
their daily lives.
What we have now
to do is, therefore, to transport ourselves, notionally, from the
court- room or the study, to the market place.
We must try to look at
the marks as they will be seen, if they are both in fair and normal
commercial use, by the hypothetical
consumers of [wine]. Those will
be people of many races and degrees of education, having varied
gifts, interests and talents. We
a re not to postulate the consumer
of "phenomenal ignorance or extraordinarily defective
intelligence". . . We are to
consider a person of average
intelligence and proper eyesight,buying with ordinary caution'."
[21] Brand JA
then listed the principles of comparison that have been developed to
reach a value judgment. He said the following
at par [6] of the
judgment :
"[6] Most,
if not all, of these considerations seem to find application in the
present context. Other principles of comparison
which have become
crystallised in earlier decisions of this court which I find to be
pertinent, include the following:
(a) A likelihood
of confusion does not only arise when every person interested or
concerned in the class of goods for which the
trademark has been
registered could probably be deceived or confused. It also arises if
the probabilities establish that a substantial
number of such persons
will be deceived or confused.
(b) The concept
of deception or confusion is not limited to inducing in the minds of
these interested persons the erroneous belief
or impression that the
two
competing
products are those of the objector or that there is a connection
between these two products. A likelihood of confusion
is also
established when it is shown
that a
substantial number of persons will probably be confused as to the
origin of the products or the existence or non-existence
of such a
connection.
(c) The
determination of the likelihood of confusion involves a comparison
between the two competing marks, having regard to the
similarities
and differences in the two and an assessment of the impact it would
have on the average type of customer who is likely
to purchase the
kind of goods to which the marks are applied.
(d) The marks
must not only be considered side by side, but also separately.
(e) It must be
borne in mind that the ordinary purchaser may encounter goods bearing
one mark with an imperfect recollection of
the other.
(f) If each of
the competing marks contains a main or dominant feature or idea, the
likely impact made by this dominating feature
on the mind of the
customer must be taken into account. This is so because marks are
remembered by some significant or striking
feature rather than by the
photographic recollection of the whole. (See eg
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
640G-641E;
Puma AG
Rudolf
Dass/er
Sport
v
Global
Warming
(Pty)
Ltd
2010 (2) SA 600
(SCA) para 8; and
Adidas AG
&
another v Pepkor Retail
Ltd
2013 BIP 203 (SCA) paras 20-23)."
[22] As stated in
Roodezandt,
the decision whether or not there is a likelihood
of deception or confusion is a value judgment. Viewed globally, the
visual and
aura l similarity of Atlantic's registered TWIST marks and
the marks sought to be registered by Pepsico, is such that, in my
view,
there is a likelihood that deception or confusion will arise if
the marks are viewed as they would be encountered in the market
place
by the notional type of customer referred to in
Plascon-Evans .
It
was submitted by Mr. Bowman, who appeared with Ms. Southwood for
Atlantic, that the goods concerned, being soft drinks, would
be of
interest to adults and children, rich and poor, educated and
uneducated, literate and illiterate and that
confusion
or deception is more likely in such a case than when the class of
consumer
is
a
limited,
specialised
class.
[14]
I
agree with
t
he
submission. The notional type of customer will, in my view, at least
be caused to wonder if the goods had a common origin.That
would
constitute confusion. The court
a
quo,
with
respect, erred in finding that
Pepsico
discharged the onus of proving that
no
likelihood
of
deception
or confusion exists. It follows that Pepsico was also not entitled to
the
alternative relief which it claimed that a disclaimer should be
entered against Atlantic's
marks.
[23] In view of this
conclusion,it is unnecessary to consider Atlantic's opposition to
registration Pepsico's PEPSI TWIST and PEPSI
TWIST label marks based
on s 10(3) of the Act, i.e. that Pepsico cannot claim to be the
bona
fide
proprietor of those marks. Atlantic's appeal against the
granting by the court
a
quo
of Pepsico's applications
for registration of its PEPSI TWIST and PEPSI TWIST label marks is
accordingly upheld.
[24]In
the result, the following orders are made:
[a] The appellant's
appeal against the granting of the respondent's trade mark
applications 2002/09809 PEPSI TWIST and 2002/09810
PEPSI TWIST label
is upheld with costs.
[b] Orders 1, 2 and
3 of the court
a quo
are set aside and replaced with the
following orders :
1.
The respondent's trade mark application 2002/09809 PEPSI TWIST
is refused.
2.
The respondent's trade mark application 2002/09810 PEPSI TWIST
label is refused.
3.
The respondent is ordered to pay the opponent's costs of the
application.
[c] The
respondent's appeal against the dismissal of its counter-application
for removal of the applicant's registered trade marks
80/0158 TWIST,
75/ 2905 LEMON TWIST and 86/7291
DIET TWIST is
dismissed with costs.
[d] The above
cost orders shall include the costs of two counsel.
J W LOUW
JUDGE OF THE HIGH
COURT
Appellant's
counsel :L Bowman
SC; F Southwood
I
nstructed
by
: Adams &
Adams, Pretoria
Respondent's
counsel :R Michau SC
I
nstructed
by
:Spoor
&
Fisher,
Centurion,
Pretoria
[1]
Up
john
Company v ,Merck & Another
1987(3
) SA
22
1
(T)
22..\C-H
[2]
Demeo
Clothing ( Pty) Ltd ,. N u-Care Marketing Sales and Promo/ ions (
Pty) Ltd and Another
[1991] ZASCA 121
;
1991
(4) SA 850
(AD) at 860E.
[3]
1953 (2) SA 603
( A) at 616F-G
[4]
See the
discussion
in
Wehster
&
Page,
South
African
Law
of
Trade
Marks.
4111
ed.,
para
3.25.
of
the
distinction
bet,,een
..adapted
to distinguish ..
and
..capable
of distinguishing
··.
[5]
Unreported judgement in the Gauteng Division dated 13/3/2015. Case
no. 37922/13
[6]
2005 (
5) SA 388
(CPD)
[7]
at 39..i
Unreported
judgment in the Gauteng Division dated 1 3'31201 5. Case no.
37922/13
D-G
[8]
20
1 -1
(2)
SA
20-1
(SCA)
para [1 1
]
[9]
198-1 (3) SA
623
(A).
[10]
201 0 ( 3) SA I (SCA) para [13].
[11]
[
2004] EW HC 520 (Ch ).
[12]
, See also
Cowbell
AG v ICS
Holdings
Ltd 200
I
(3) SA 941 (S
C
A
).
[13]
(
503)
1 3
[2014]
ZASCA
1
73 ( 1 9 November 2014).
[14]
See
Cointream
et Cie SA
r
Pagun
International
1991
(
4) SA 706
(A) at 717A-C.