About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 1051
|
|
Union-Swiss (Pty) Ltd v Bio-Cream Cosmetics CC; Union-Swiss (Pty) Ltd v Bio-Cream Cosmetics CC; Union-Swiss (Pty) Ltd v Bio-Cream Cosmetics CC and Another (56526/12, 2521/13, 54314/13) [2015] ZAGPPHC 1051; 2015 BIP 494 (GP) (17 July 2015)
I
N
THE
HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG: PRETORIA
DATE:
17/7/2015
CASE
NO: 56526/12
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
UNION-SWISS
(PTY)LTD APPLICANT
and
BIO-CREAM
COSMETICS
CC RESPONDENT
Case
no.: 2521/13
In
the matter between:
UNION-SWISS
(PTY)LTD APPLICANT
and
BIO-CREAM
COSMETICS
CC RESPONDENT
Case
no.: 54314/13
In
the matter between:
UNION-SWISS
(PTY)LTD APPLICANT
and
BIO-CREAM
COSMETICS
CC FIRST
RESPONDENT
THE
REGISTRAR
OF TRADE
MARKS
SECOND
RESPONDENT
JUDGEMENT
1.
The above mentioned applications were argued simultaneously. In the
first two applications the applicant seeks relief against
passing off
and the third application is aimed at expunging South African
trademark registration 2011/16486 BIO LOTION registered
in the
name of the first respondent, Bio-Cream Cosmetics CC.
2.
The first two applications are against Bio-Cream Cosmetics CC
("Bio-Cream Cosmetics") and Bio-Lotion Cosmetics CC
("Bio-Lotion Cosmetics") respectively. Initially the
applicant brought the application against Bio-Cream Cosmetics. In
its
answering affidavit, Bio-Cream Cosmetics contended that it merely
owns the Bio Lotion trademark which appears on the Bio-Lotion
product but that it licensed the right to use the Bio-Lotion
trademark to its sister company Bio-Lotion Cosmetics and that it is
that entity that should have been the respondent in that application.
The applicant thereupon launched a separate application against
Bio-Lotion Cosmetics.
3.
The applicant, however, persists in seeking relief against Bio-Cream
Cosmetics for the reason that it is the entity that ultimately
authorises and controls the use of that trademark. The
applicant submitted that Bio-Cream Cosmetics
is therefore complicit in the deed of passing off.
Furthermore, Bio-Cream Cosmetics may in future decide to sell the
Bio-Lotion product itself and the applicant has a reasonable
apprehension that it will do so especially since the two entities
are
effectively alter egos of their only member, Mr Silora.
4.
I agree with the submissions on behalf of the applicant and for that
reason the point in limine of Bio-Cream Cosmetics that the
passing
off application should not have been brought against it, should be
dismissed.
5.
At the hearing of this matter the two passing off applications were
argued as one. The expungement application was also argued
simultaneously since all three applications are based on the same
facts. In order to avoid unnecessary confusion I shall refer
to the
applicant in all three the applications is as "the applicant"
and I shall refer to Bio-Cream Cosmetics and Bio-Lotion
Cosmetics
merely as "the respondent" unless it is necessary to refer
to them individually. I shall also refer to the
applications as if
they were one application unless it is necessary to refer to them
individually.
6.
I shall deal with the issue of passing off first. The principles
governing passing off were recently restated by the Supreme
Court of
Appeal in the matter of Adidas AG and another v Pepkor Retail Ltd
(187/12)
[2013] ZASCA 3
(28 February 2013) at paragraphs [28] to [32]
as follows:
"[28]
The principles governing passing off are well established. Passing
off occurs, in relation to goods or merchandise, when
one trader
represents to the public that his goods or merchandise are the goods
or merchandise of another trader. Where the representation
is implied
it will usually be made by the one trader adopting a name, mark or
get-up for his goods or merchandise which so resembles
that of the
other trader that there is a reasonable likelihood that ordinary
members of the public, or a substantial section thereof,
may be
confused or deceived into believing that the goods or merchandise of
the former are the goods or merchandise of the latter
or are
connected therewith. Whether there is such a reasonable likelihood of
confusion or deception is a question of fact
to be determined in the
light of the particular circumstances of the case. In order to
succeed in passing
off
proceedings based upon an implied
representation the aggrieved trader must establish, first, that the
name, mark or get-up used
by that trader has become distinctive of
the trader's goods or merchandise in that the public associates the
name, mark or get-up
with the goods or merchandise marketed by that
trader and, secondly, that the name, mark or get-up used by the other
trader is
so used as to cause the public to be confused or deceived
in the manner described.
[29]
The degree of distinctiveness (or the extent of the reputation) is of
great importance in passing
off
proceedings as it
affects the issue of whether the general public will be confused or
deceived into thinking, because of the similarity
of the name, mark
or get-up, that the goods or merchandise of the second trader are
those of the first trader or are connected
therewith. It follows
therefore that Uust as in the case of trademark infringement) the
more distinctive the get-up is (or the
greater the extent of its
reputation) the greater the likelihood will be that the public will
be confused or deceived. An aggrieved
trader can establish such
distinctiveness (or reputation) in respect of the goods or
merchandise by adducing evidence as
to the manner and the scale of
the use of the name, mark or get-up which justifies the inference
that the name, mark or get-up
has become recognised by a substantial
section of the relevant public as distinctive of the aggrieved
trader's 'goods or merchandise'.
.....
[30]
When considering whether the public will be confused or deceived by
an implied representation the court must postulate neither
the very
careful nor the very careless buyer, but an average purchaser, who
has a good idea in his mind's eye of what he means
to get but not an
exact and accurate representation of it. The court must also take
into account that the purchaser will not necessarily
have the
advantage of seeing the products side-by-side and will not be alerted
to the fine points of distinction or definition.
The court must
further take into account that the purchaser may not be able to read
simple words as there are many people
in South Africa that are
illiterate.
[31]
Finally, it must be borne in mind that the law of passing off
does not confer monopolies on successful
get-ups. A trader may, to an
extent, copy the successful get-up of a rival. However, the moment he
copies he will be at risk. The
trader will only avoid liability for
passing off if he makes it perfectly clear to the public that the
articles which he is selling
is not the other manufacturer's, but his
own, so that there is no probability of the ordinary purchaser being
deceived.
[32]
Passing off (unlike trademark infringement in terms of s 34 (1)
(a) of the
Act) requires that a comparison be made between the
get-ups of the competing goods and not just the trademarks applied to
those
goods. What had to be proved was that, by adopting the
particular get-ups, which included the two and four stripe marks, the
respondent
was representing its goods to be those of the appellants
or to be connected therewith. This is a matter of first impression.
In
opposing the grant of relief on the grounds of passing off, the
respondent again refer to what it considered to be the appellants'
improper use of the 'adidas technique' and the fact that the
appellants' trademarks are famous."
7.
As a general proposition there are, therefore, two central elements
to a claim based on passing off. The first is proof of goodwill
or
reputation in the relevant goods and the second is proof of the
likelihood of deception or confusion. In regard to the second
element
the comparison is between the whole of the get-up of the applicant
and the whole get-up of the respondent. In this sense
it differs from
trademark infringement cases where the enquiry is confined to a
comparison of the registered mark with that portion
of the
respondent's get-up which is alleged to infringe the applicant's
registered rights. See Stellenbosch Farmers Winery Ltd
v Stellenvale
Winery (Pty)Ltd 1957(4) SA 234 (C) at 240 C-D.
8.
In the present application the evidence adduced clearly establishes a
significant goodwill and extensive reputation which the
applicant
enjoys in its Bio-Oil product. The respondent admitted this. The
Bio-Oil skincare products have, since 1987, been sold
extensively
throughout South Africa and are extremely well-known to purchasers of
skincare products for general purposes, to pregnant
women and to
medical practitioners. The general appearance of the get-up has
remained the same for the last approximately 14 years
and exactly the
same for the last approximately 10 years. The products are sold
in bottles of three different quantities,
in boxes, and are widely
used throughout South Africa to improve the appearance of scars,
stretchmarks and uneven skin tone. It
is also effective for ageing
and dehydrated skin. According to market research the Bio-Oil
products were the best selling scar
and stretchmark products in each
year for the last four years. In each of the years 2006 to 2011 the
total number of units sold
in South Africa exceeded 2 400 000 with a
retail value of over R150 000 000,00, i.e., more than double that of
the closest competitor.
9.
The applicant's Bio-Oil branded products can be purchased at
independent pharmacies, pharmacy retail chains and other national
chains of retailers. In total, the applicant supplies the Bio-Oil
products for sale through more than 5 000 retail outlets throughout
South Africa.
10.
The Bio-Oil products have been advertised continuously and on a
substantial scale since 2001 and has been carefully directed
at the
relevant consumers through television, printed publications, general
and selected magazines and on-line. The expenditure
on
advertising in South Africa between the years 2006 and
2011 range from between more than R13 million to more
than R18,6
million in 2011.
11.
A number of awards and accreditations have been won and received by
the Bio Oil products since 2004. The Bio-Oil products
have been
recognised by health professionals as being the leading product for
alleviating problems with scars and stretchmarks
and market research
conducted during 2012 has indicated it to be the product most
recommended by doctors, pharmacists and midwives.
12.
The Bio-Oil products have built up a considerable reputation and
valuable goodwill in South Africa and has developed continuously
over
the years. The evidence shows that because of the overwhelming
popularity of these products amongst customers, the applicant
has on
several occasions been approached to extend its product line,
specifically to lotions. It was submitted on behalf of the
applicant
that, for this reason alone, customers will assume that any product
in a get-up that is confusingly similar to the Bio-Oil
products, is a
Bio-Oil product or, at the least, is an extension of the Bio-Oil
product range.
13.
The applicant is the registered proprietor in South Africa of two
trademarks. The first is the trademark "BIO-OIL"
in class 3
in respect of bleaching preparations and other substances for laundry
use; cleaning and polishing, scouring and abrasive
preparations;
soaps, perfumery, essential oils, cosmetics, hair lotions; and
dentifrices. The second is the trademark "BIO-OIL
and drop
device" in class three in respect of soaps, perfumery, essential
oils, cosmetics, hair lotions; and dentifrices.
The drop device is
formed by horizontal lines which gives the drop an irregular edge.
Three of the lines in the middle of the drop
slightly extend the side
edges of the drop. The boxes containing the bottles are white with
the drop device in grey lines with
the longer lines through it, in an
orange colour. The writing on the box containing the Bio-Oil mark is
also in this orange colour.
The more striking or prominent features
of the applicant's product are the Bio-Oil name and the drop device.
14.
The respondent's trademark is "BIO-LOTION" and is also
registered in class 3 and in respect of the exact same products
as
the BIO-OIL and device trademark. The product is contained in a white
bottle containing the words "Bio Lotion" in
orange letters.
Above these words appears a drop device with a rough edge.
15.
The first question to be answered is whether consumers seeing these
two products, whether side-by-side or apart, would be misled
into
believing that there is a trade connection between them. According to
the applicant such consumers, or at least a substantial
number of
them, would undoubtedly consider that the Bio Lotion product is
a line extension of the well-known Bio-Oil product,
i.e., a similar
product, produced by the same manufacturer and applied to the skin
for the same purpose but as a lotion rather
than as an oil.
16.
The respondent adduced evidence of the get-ups of other competing
products on the market and pointed out that there are a number
of
products on the market which include drop devices and which have the
colours orange and white.
17.
The applicant, however, does not claim a monopoly in the individual
features which make up its get-up but claims
rights in the
get-up as a whole. Having regard to the get-up as a whole, it
appears, however, that none of the products referred
to by the
respondent and which relates to skin care, consists of a combination
of an orange and white get-up, a drop device and
a name which
includes "Bio" together with a product descriptor.
18.
I agree with this submission on behalf of the applicant that the
Bio-Oil get-up is unique and distinctive. The only product
which
looks remotely similar to the Bio Oil product is Dischem's
Hydra-Oil. It also bears the white and orange colours and
has three
drop devices falling into a puddle. The drop devices, however, have
sharp edges and are removed from the words Hydra-Oil.
According to
the applicant this product was recently launched and the applicant is
in the process of taking steps to have the get-up
changed.
19.
I agree with the submissions on behalf of the applicant that the
reliance on the get up of other products does not undermine
the
substantial reputation enjoyed by the applicant in its Bio-Oil
product and that the get-up is unique.
20.
This court must determine whether the representation made through the
get-up of the respondent's product is likely to cause
deception or
confusion amongst purchasers or potential purchasers of the
Bio-Lotion product as to the source of this product. A
number of
principles have evolved over time to which the court must have regard
in making its determination. The first is that
the court must
notionally transport itself to the particular marketplace and
place itself in the position of those who might
be expected to make
use of the goods offered by the two trade rivals. The class of
persons who are likely to be the purchasers
of the goods must
therefore be taken into account in determining whether there is
a likelihood of confusion or deception.
See Reckitt & Coleman SA
(Pty)Ltd v SC Johnson & Son SA (Pty)Ltd 1993(2) SA 307 (AD) at
p315 -G. The court must consider
the likely impact of the
get-up employed by the two traders on the notional "ordinary
customer".
21.
In Blue Lion Manufacturing (Pty)Ltd v National Brands Ltd
2001 (3) SA
884
(SCA) at paragraph [3] the court defined the average or ordinary
purchaser as follows:
"When
one is concerned with alleged passing
off
by imitation
of get-up, as is the case in the matter before us, one postulates
neither the very careful nor the very careless buyer,
but an average
purchaser, who has a general idea in his mind's eye of what he means
to get but not an exact and accurate representation
of it. Nor will
he necessarily have the advantage of seeing the two products side by
side. Nor will he be alerted to single out
fine points of distinction
or definition. Nor even, as pointed out by Greenberg J (from whom I
have been quoting) in Crossfield
& Son Ltd v Crystal lizers
Ltd
1925 WLD 216
at 220, will he have had the benefit of counsel's
opinion before going out to buy. Nor will he necessarily be able to
read simple
words, as there are distressingly many people in South
Africa who are illiterate."
22.
In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 6401 - 641D the applicable test in determining the
likelihood of deception or confusion was expressed as follows:
"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."
23.
The test is consequently one of first and general impression, having
regard to the circumstances in which the ordinary purchaser
of
skincare products finds himself/herself and even momentary confusion
on the part of the consumer is sufficient. See Orange
Brand
Services v Account Works Software (970/12) [2013] ZASCA 158
paragraph [13].
24.
In applying the aforesaid tests and principles to the fact of this
case, there is little doubt that a substantial number of
consumers
will be confused as to the source of the Bio-Lotion product. As a
matter of first impression, the similarities between
the two products
are clear. Firstly there is the combination of the white colour of
the container/box and the writing in Orange.
Secondly, there is the
word "Bio" together with a hyphen and a descriptive term
for the product in question namely lotion
or oil. Thirdly, there is
the use of a drop device which is very similar in shape and in its
proximity to the name of the product.
Both drops also have an uneven
image.
25.
It is these general features, which are common in both products,
together with the most striking feature namely the word "Bio",
which would attract the attention of the ordinary purchaser of these
products and which would give rise to the likelihood of confusion.
26.
The fact that the one product refers to an oil and the other to a
lotion, is not a sufficient distinction to overcome any confusion
caused by the other similarities. The dominant part of the get-up
namely the word "Bio" and the other similar features
are
such that the ordinary customer would confuse the respondent's
product with that of the applicant's product. Even if a consumer
would notice that the one product is an oil while the other is a
lotion, that would not necessarily avoid the confusion for it
would
not be uncommon for a manufacturer of an oil-based cosmetic product
to extend its product range to include a lotion. Consumers
are,
therefore, likely to assume that the Bio-Lotion product is simply a
line extension of the Bio-Oil product. In these circumstances,
the
relief sought in the Amended Notice of Motion should be granted to
the applicant.
27.
The application to expunge the trademark registration in the name of
the first respondent in the expungement application must
now be
referred to. The applicant confined its argument to section 10(13) of
the Trade Marks Act, Act 194 of 1993 ("the Act").
In order
for the applicant to succeed, the court must be satisfied, firstly,
that the goods in respect of which the respondent's
registered
trademark is registered "are the same as or similar to" the
goods in respect of which the applicant's trademark
is registered;
and, secondly, that the respondent's mark is so similar to the
applicant's trademark that the use by the respondent
of its mark on
the goods in respect of which its mark is registered is likely to
deceive or cause confusion. The "use"
contemplated in
section 10(14) is not actual use, but rather notional use of the
respective marks on any of the goods for
which they are registered.
28.
In Cowbell AG v ICS Holdings Ltd
2001 (3) SA 941
(SCA) in paragraph
[1O] the court set out the test to be applied under section 10(14)
(in relation to section 17
(1)
of the old Trade Marks Act of 1963, which section is similarly worded
to section 10(14) of the Act) as follows:
'[1O]
Section 17(1) creates an absolute bar to registration provided the
jurisdictional fact is present, namely that the use of
both marks in
relation to goods or services in respect of which they are sought to
be registered, and registered, would
be likely to deceive
or cause confusion. The decision involves a value judgment and
'[t]he
ultimate test is, after all, as I have already indicated, whether on
a comparison of the two marks it can properly be said
that there is a
reasonable likelihood of confusion if both are to be used together in
a normal and fair manner, in the ordinary
course of business'.
(SmithKline
Beecham Consumer Brands (Pty) Ltd (formerly known as Beecham South
Africa (Pty) Ltd) v Unilever pie
[1995] ZASCA 26
;
1995 (2) SA 903
(A) at 912H.)
'Likelihood' refers to a reasonable probability (ibid at 91OB),
although the adjective 'reasonable' is perhaps surplusage.
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 (The Upjohn
Company v Merck and
Another
1987 (3) SA 221
(T) at 227E - F; Canon Kabushiki Kaisha v
Metro-Goldwyn-Mayer Inc (formerly Pathe Communications
Corporation)
[1999] RPC 117
(ECJ) para 28)."
29.
In order to decide whether there is a reasonable likelihood of
confusion the marks must be appreciated globally. The global
appreciation of the visual, aural or conceptual similarity of the
marks in question must be based on the overall impression given
by
the marks, bearing in mind, in particular, their distinctive and
dominant components. See Sabel BV v Puma AG, Rudolf Dassler
Sport
[1998] RPC 199
(ECJ) at 224; Cowbell
(
supra)
ibidem.
In making the comparison the question of the
likelihood of confusion is a matter of first impression which does
not require one
to peer too closely at the respective trademarks to
find similarities and differences, and which allows for imperfect
recollection.
In Adidas AG & anor v Pepkor Retail Ltd
[2013]
ZASCA 3
para [24] the court stated the following principles:
"The
more distinctive the trademark is, or the greater its reputation, the
greater the likelihood that there will be deception
or confusion
where a similar mark is used in competing products. Purchasers who
are used to seeing the first appellant's trademarks
will still
experience imperfect perception or imperfect recollection and will be
far more likely to conclude that the similar mark
is the first
appellant's trademark or is associated with the first appellant's
trademark and consequently that the competing products
come from the
same source. That is clearly the position in other jurisdictions
where the law is comparable with ours."
30.
It is common cause that the products in respect of which the Bio-Oil
and Bio Lotion products are registered, are identical.
The
dispute thus terms entirely on whether or not the Bio-Lotion
trademark is sufficiently similar to the Bio-Oil trademark that
the
use of that mark by the respondent on any of the goods for which it
is registered, is likely to give rise to a likelihood of
deception or
confusion.
31.
On behalf of the respondent it was submitted that the respective
trademarks used are different and that the application can
thus not
succeed. It was further submitted that the only common feature of any
significance is the word "Bio" and that
it is an entirely
non-distinctive term but a descriptive term referring to
"biological", "of living things"
and "of
life". As such the scope of protection for the mark is narrower
than if it had consisted of an arbitrary term.
It was submitted that
in respect of this descriptive term, relatively minor differences
will suffice to distinguish the applicant's
products from that of the
respondent's products.
32.
I disagree with the submission that the word "Bio" is a
descriptive term which attracts the consequences submitted
on behalf
of the respondent. A descriptive term would, as a general rule,
describe a product. The word "Bio" does not
describe an oil
or any type of cosmetic product. It is also not an everyday word in
relation to any product in class 3. In fact,
it describes nothing. At
best it is an illusion to something biological. The applicant has
used the word "Bio" hyphenated
to the word "Oil"
for many years and has built up a considerable reputation and
goodwill and has a high level of recognition
in the market. The word
"Bio", as a distinctive term, is the dominant part of the
applicant's trademark and it is highly
likely that consumers would
regard the respondent's Bio-Lotion mark as a line extension of the
applicant's Bio-Oil product, perhaps
performing a similar function in
a different way - one as an oil and one as a lotion. The rest of the
mark, including the drop
device, increases this likelihood. As
already stated, the likelihood that consumers will indeed be confused
is made all the more
probable by the fact that the Bio-Oil trademark
is extremely well-known, and the belief that the two products are the
same or originate
from the same source or that there is a connection
in the course of trade between them, is highly probable.
33.
On behalf of the respondent reference was also made to other products
on the register containing the word "Bio" as
a prefix or as
part of another word and it was submitted that if those words do not
create an association with the applicant, the
trademark Bio-Lotion
will also not do so. In my view the state of the register, as used by
the respondent, cannot be the sole consideration.
Any investigation
must be confined to the trademark in question. The market also has to
be considered and in that regard it appears
that only one product
with "Bio" as a prefix is used in the market. I agree with
the submission on behalf of the applicant
that consumers will not be
aware of entries on the register and that the presence of these marks
on the register does not, therefore,
bear upon the enquiry as to the
likelihood of deception or confusion.
34.
I have considered all the submissions and arguments on behalf of the
respondent but in my view it is not necessary to refer
thereto
herein. In my view the respective trademarks are not sufficiently
distinguishable and I am satisfied that the use by the
respondent of
the Bio-Lotion trademark is likely to lead to confusion or deception
in the course of trade and should be expunged.
35.
As far as the relief to be granted is concerned it is only necessary
for purposes of the two passing off applications to grant
the relief
in the applicant's Amended Notice of Motion in case nr. 56526/12, and
the second prayer in the expungment application,
case nr. 54314/13.
In respect of the costs of the two passing off applications the
applicant only persisted with the cost
of one of these applications.
The parties were ad idem that the costs of two counsel should be
granted. The applicant further submitted
that any cost order in
respect of the passing-off applications should be against Bio-Cream
Cosmetics and Bio-Lotion Cosmetics jointly
and severally. I am
satisfied on the evidence before me that this submission is correct.
36.
In the result the following order is made:
In Case 56526/12 and
Case 2521/13
1.
Bio-Cream Cosmetics CC is interdicted and restrained from passing-off
its BIO-LOTION product as that of the Applicant or as being
connected
in the course of trade with the Applicant, by using the get-up of its
current BIO-LOTION product or any get-up which
is confusingly or
deceptively similar to the get-up of the Applicant's BIO-OIL product.
2.
Bio-Cream Cosmetics CC is interdicted and restrained from procuring
or inducing, aiding and abetting, advising, inciting or instigating
or otherwise assisting Bio-Lotion Cosmetics CC to pass off the
BIO-LOTION product as that of the Applicant or as being
connected in the course of trade with the Applicant, by authorising
or otherwise allowing Bio-Lotion Cosmetics CC to use the get-up
of
its current BIO-LOTION product or any get-up which is confusingly or
deceptively similar to the get-up of the Applicant's BIO-OIL
product.
3.
Bio-Cream Cosmetics CC and Bio-Lotion Cosmetics CC are ordered
jointly and severally to pay the costs of the applicant
in case nr.
56526/12 which costs shall include the costs of two counsel.
In
Case 54314/13
4.
The Second Respondent, the Registrar of Trade Marks, is ordered to
remove trademark registration number 2011/16486 BIO-LOTION
from the
trade marks register.
5.
Bio-Cream Cosmetics CC is ordered to pay the costs of the
applicant in case nr. 54314/13 which costs shall include the
costs of
two counsel.
_____________________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT