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[2013] ZAKZDHC 25
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Distell Ltd v KZN Wines and Spirits CC (10006/2011) [2013] ZAKZDHC 25; 2013 BIP 263 (KZD) (23 May 2013)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO. 10006/2011
In
the matter between:
DISTELL
LIMITED
..................................................................................
APPLICANT
and
KZN WINES AND SPIRITS CC
.........................................................
RESPONDENT
_____________________________________________________________________
JUDGMENT
Delivered
on:
23
May 2013
_____________________________________________________________________
MNGUNI
J
[1] The applicant is a wholly owned
subsidiary of South African Distilleries and Wines (SA) Limited
which, in turn, is a wholly
owned subsidiary of Distell Group
Limited, the ultimate holding company of a substantial number of
subsidiary companies. As the
main trading company within the group,
the applicant is responsible for the manufacturing, marketing and
distribution of the products
of all the subsidiary companies in the
group including fine wines, a wide range of spirits (including
whisky) and ready to drink
alcoholic beverages.
[2] The applicant is the registered
proprietor of the following trademarks in class 33: 88/05853 KNIGHT’S
GOLD filed on 15
July 1988 in respect of wines, spirits and liqueurs,
all other fermented beverages included in this class, dilutions,
derivatives
and mixtures of the aforegoing goods, and 91/03863
KNIGHTS Label filed on 17 May 1991 in respect of alcoholic beverages
(excluding
beers). The first trademark is described in annexure CS
2.1 and consists only of the words KNIGHT’S GOLD. The second
trademark
is described in annexure CS 2.2 depicts a device of a label
with the word KNIGHTS in white print on a black background and what
appears to be some decorative features above and below the word. Both
trademarks cover whisky.
[3] Each trademark is subject to a
disclaimer in the following terms: In respect of trademark 88/05853
KNIGHT’S GOLD to the
effect:
‘
Registration
of this trade shall give no right to the exclusive use of the surname
KNIGHT or of the word GOLD each separately and
apart from the mark’
and in respect of the trademark
91/03863 KNIGHT’S Label to the effect:
‘
Applicants
undertake that, in use, the blank spaces appearing in the mark will
be left blank and/or will be occupied only by- matter
of a wholly
descriptive or non-distinctive character; and/or a trade mark
registered in the name of the applicants in respect of
the same
goods; and/or a trade mark of which the applicants are registered
users in respect of the same goods with consent of the
proprietor of
such trade mark; and/or a trade mark of a registered user registered
in respect of the same goods and with the consent
of the applicants.’
[4] The respondent is a close
corporation duly incorporated in terms of the Close Corporation Laws
of the Republic of South Africa
and was incorporated in 2000. It is
engaged in the business of importing and selling of liquor products
and one of those products
is a BLACK KNIGHT Blended Scotch Whisky. In
about May 2011 the applicant discovered that the respondent is
importing and selling
this product under the trademark BLACK KNIGHT.
On 15 August 2011 the applicant’s attorneys addressed annexure
CS6 to the
respondent demanding that it cease from its wrongful
conduct. No response was received thereto or to a subsequent
reminder. The
applicant then launched the present application seeking
an order interdicting and restraining the respondent from infringing
its
registered trademarks and from passing off its product as that of
or associated with those of the applicant.
[5] Relying on
section 34(1)(a)
of the
Trade Marks Act 194 of 1993
the applicant contends that the
respondent’s use of the trademark BLACK KNIGHT is so similar to
the applicant’s KNIGHT’S
GOLD and KNIGHTS Label when
compared visually, aurally and conceptually that it amounts to an
infringement of either or both of
its registered trademarks. This
section provides that the rights in respect of a trademark are
infringed by the unauthorised use
in the course of trade in relation
to goods or services in respect of which the trademark is registered,
of an identical mark or
of a mark so nearly resembling it as to be
likely to deceive or cause confusion.
[6] Apart from denying any deceptive
similarity between the registered trademarks and the alleged
offending trademark, the respondent
stressed, in its answering
affidavit, the following contrasting features of the two products:
6.1 Applicant’s product is in a
750 ml bottle. Respondent’s product is in a 1 litre bottle;
6.2 Applicant’s product is in a
clear glass bottle. Respondent’s product is in a green coloured
glass bottle;
6.3 Applicant’s product is in a
rectangular shaped bottle. Respondent’s product is in a round
bottle.
6.4 Applicant’s product is
bottled in South Africa and professes to be a blend of ‘South
African Whisky and Scotch Whisky’
blended in South Africa.
Respondent’s product is produced and bottled in Scotland and
professes to be a ‘Blended Scotch
Whisky’.
6.5 The front label of applicant’s
product has white and gold text designs against a black background.
Respondent’s
product has black and red text and a black image
on a white background;
6.6 Applicant’s product has a
rectangular front label which fits on the front quadrant of the
bottle while respondent’s
front label wraps around the shape of
the bottle;
6.7 Applicant’s back label is
small and square shaped with white and gold text and images against a
black background. Respondent’s
back label is long and
rectangular with red and black text and images against a white
background;
6.8 Applicant’s product is
called ‘Knights’. Respondent’s product is called
‘Black Knight’.
6.9 The images depicted on applicant’s
product are a gold crest with a horsehead in the centre (the head is
against a red
background) and five gold coins. The images depicted on
respondent’s product are a black knight holding a lance on a
horse,
five black stars and a signature in red on a black background;
6.10 The colours of applicant’s
images are predominantly gold while respondent’s images are
predominantly black;
6.11 The text on applicant’s
product is white and gold in colour while the text on respondent’s
product is black and
red;
6.12 The screw-top on applicant’s
bottle extends down the neck of the bottle and has both text and an
image on the lower portion.
The screw-top on respondent’s
bottle does not extend down the neck of the bottle and has neither
text nor an image thereon;
6.13 The front and back labels on
applicant’s bottle have gold trim around the outer edges while
the labels on respondent’s
bottle have black edging.
[7] In order to establish infringement
in terms of
section 34(1)
(a) it is necessary for the applicant to
show:
use of the registered mark or of a
mark so nearly resembling it as to be likely to deceive or cause
confusion
that the use is in relation to the
goods or services in respect of which the trademark is registered
that the use is in the course of
trade, and
that the use is unauthorised.
(see Webster and Page,
South
African Law of Trademarks
4 ed para 12.7)
[8) Since it is common cause that the
applicant’s trademarks exist and are registered, that the
respondent is making use of
the trademark BLACK KNIGHT in relation to
whisky (which falls within the scope of both of the applicant’s
registered trademarks),
and that the respondent uses the trademark in
the course of its trade and is unauthorised, what falls for decision
is whether the
respondent’s trademark BLACK KNIGHT is so
similar to either or both of the applicant’s trademarks so as
to be likely
to cause confusion or deception. This requires a
comparison to be made between the applicant’s two registered
trademarks
and the respondent’s offending mark. Such comparison
must, however, be preceded by a discussion of the essential
principles
governing the basis upon which it is to be made.
[9] These essential principles were
neatly summed up in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
1984 (3) 623 (A) at 640G-641E by Corbett JA as follows:
‘
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 trademark 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, i e 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
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
encouraged 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 my 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 generally impression 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.’
[10] The likelihood of confusion must
be appreciated globally. The visual, aural and conceptual
similarities of the trademarks in
question must be assessed by
reference to the overall impressions created by the marks bearing in
mind, in particular, their distinctive
and dominant components (see
Bata Ltd v Face Fashions CC and Another
2001 (1) SA 844
(SCA)
para 9,
Sabel BV v Puma AG, Rudolph Dasster Sport
[1998] RPC
199
at 224).
[11] Importantly, the question of the
likelihood of confusion or deception is a matter of first impression
and does not require
one to peer too closely at the registered mark
and the alleged infringement to find similarities and differences
(see
Laboratorie Lachartore SA v Armour – Dial Inc.
1976
(2) SA 744
(T) at 746 B-F). The Court must not consider the question
of confusion or deception as if the purchaser of the goods will have
had the opportunity of carefully considering the marks and even
comparing them side by side. What is required by the Court is that
they must look at the marks as they will be seen in the market place,
and taking into account a notional purchaser ‘a person
of
average intelligence, and proper eyesight, buying with ordinary
caution’ (
Laboratorie Lachartre
supra
).
[12] Furthermore, if the association
between the marks causes the public wrongly to believe that the
respective goods come from
the same or economically linked
undertakings, there is a likelihood of confusion (
Compass
Publishing B V v Compass Logistics Ltd
2004 EWHC 520
(CH)
(2004
RPC 41).
It must be emphasised that trademarks more often than not
are objectively meaningless, because if they have a meaning they may
be descriptive, but that does not mean that they cannot be badges of
origin or source identifiers even if they do not disclose the
source
(
Puma AG Rudolf Dassler Sport v Global Warning
2010 (2) SA 600
para 5). The whole of the registered trademark must be considered
against the whole of the alleged offending trademark including
any
disclaimed parts and it is no answer for a party creating confusion
between his product and that of another to show that such
confusion
may subsequently be rectified (see
John Craig (Pty) v Dupa
Clothing Industries (Pty) Ltd
1977 (3) SA 144
(T).
[13] Whether the likelihood of
confusion or deception arises is a question of fact which the Court
must determine in the light of
the circumstances of each case and
care must be taken not to surrender the Court’s judgment to
that of a witness or to allow
what is essentially, an expert
witness’s opinion to be introduced in the guise of
scientifically established facts (see
Reckitt and Colman SA (Pty)
Ltd v S C Johnson and Sono SA (Pty) Ltd
1993 (2) SA 307
A at 315
D). The enquiry turns on to the potential customer. I am therefore
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, in this instance, buy whisky (see
Oude Meester Groep BPK and
Another v SA Breweries Ltd
and Another 1
973 (4) 145 (W) at
161 C-E).
[14] As I have mentioned, the
applicant advances two causes of action against the respondent,
namely, infringement of the two registered
trademarks and passing
off. I shall deal first with the claim based on the alleged
infringement. As far as the visual similarity
is concerned, I am
satisfied that the comparison of the marks as a whole reveal that
these marks are visually so different that
confusion or deception is
impossible. I arrive at this conclusion mindful of the fact that it
is common for the producers to change
the format of their get ups
from time to time whilst retaining the essential features. In my
view, there is much in the differences
of the marks when visually
present, which suggests that confusion or deception is unlikely to
occur.
[15] As regards aural and conceptual
similarity, the main contention of the applicant was that the mark
KNIGHT is the dominant feature
on both the registered trademarks and
the offending trademark which will remain in the mind of the
customer, and this will be what
the customer recalls of the marks in
question. Counsel for the applicant submitted that the use of the
word ‘black’
in the offending trademark does not serve to
distinguish it from the registered trademarks because the colour
black is nearly laudatory
(e.g. John Walker Black Label) in the
whisky industry. On the strength of this submission she stressed
that, a notional consumer
who encounters the offending trademark is
likely to consider the product to be that of the applicant or to be
associated with or
will, at the very least, wonder as to whether such
a connection exists
[16] On the other hand the respondent
contended that in the mark KNIGHT’S GOLD, ‘gold’ is
used, not as a colour
i.e. as an adjective but as a noun, which is
the specific metal ‘gold’. And the word KNIGHT’S is
a possessive
adjective used to describe whose ‘gold’ it
is. Counsel for the respondent contended that in the context of the
mark
considered as a whole, the possessive adjective KNIGHT’S
is not more dominant than the thing it describes, namely, GOLD.
[17] Allied to that earlier
contention, he submitted that even if it were to be argued that the
mark is to be understood as meaning
the ‘gold’ whisky
product of KNIGHT’S, conceptually the mark derives its meaning
from the combination of the
two words. Accordingly, he submitted, one
cannot look at each word in isolation to derive the sense or meaning
or concept of the
mark. He submitted that the meaning of KNIGHT’S
GOLD is entirely distinct from that of BLACK KNIGHT, where ‘knight’
is the noun and ‘black’ is a somewhat strong emphatic
adjective, used to describe a particular quality of ‘knight’,
whether literal or figurative, and that ‘BLACK KNIGHT’,
when pronounced aurally could equally refer to a ‘black
night’
i.e. a dark night.
[18] He contended that BLACK KNIGHT
gains its message from a combination of the two words and the
respective marks have an entirely
different message and do not look
and sound similar and that as a matter of first impression, the
respective marks are dissimilar
and will not lead to either confusion
or deception. He argued that even though the one mark incorporates
KNIGHT and the other mark
KNIGHT’S, this will not, when the
marks are considered in their totality create an association between
the two marks, which
will cause the public to believe that the
respective goods come from the same or economically linked
undertakings.
[19] Although Counsel hold divergent
views on whether the mark KNIGHT is the dominant feature on both
marks, it is evident that
they have a word in common. In the
registered mark it is used either coupled with another word or on its
own. On the offending
mark another word precedes it. Counsel for the
applicant has not asserted that the word “KNIGHT” is an
invented or
made up word. In the circumstances, it would be
appropriate to conclude that it is an ordinary word in everyday use.
The issue
in
casu
, therefore, is whether it follows that
confusion would probably arise if the word is used in combination
with another word.
[20] Counsel for the applicant
submitted that both products are sold in a bar or crowded lounge, and
ordered verbally, the noise
would be such that when a customer
articulates the applicant’s whisky, the barman or waiter as the
case may be, would be
deceived or confused into believing that the
customer is asking for the respondent’s whisky. I do not share
these sentiments.
In my view, counsel for the respondent is correct
in stating that even though whisky is a popular drink, it is not a
cheap drink.
Consequently, a consumer is likely to exercise
circumspection and a greater degree of care in making a purchase. It
is not an overstatement
that whisky drinkers take pride in the
product and assimilate in it such that they are able to distinguish
whether it is single
malt or blended as well as a source of origin.
Counsel for the respondent, correctly, in my view, pointed out that
in the applicant’s
registered label, KNIGHTS could refer
equally to the plural of the surname Knight, or to the possessive
Knights (Knights’
whisky), as to a reference to persons bearing
a title i.e. ‘knights’.
[21] Although the respondent has
denied that these products are marketed and sold in competition with
each other, I accept the applicant’s
evidence in this regard.
Of importance on this issue is that the respondent, in its answering
affidavit, asserted that it commenced
operating its business in 2000
and that it has been importing the offending product into South
Africa and selling it to Midmar
since 2002. The applicant has not
provided any evidence of the likelihood of confusion or deception. In
the absence of such evidence,
I am inclined to find that it is
unlikely that the notional purchaser of the applicant’s whisky,
even with an imperfect recollection
or perception, when confronted
with BLACK KNIGHT, would focus attention only on the word KNIGHT and
ignore the word BLACK. To my
mind, the whole mark BLACK KNIGHT serves
to distinguish the respondent’s whisky from that of the
applicant.
[22] As contended by counsel for the
respondent, in the present case the strong emphatic adjective ‘Black’
on the offending
mark cannot be ignored, because it is as significant
as the word ‘Knight’, resulting in the element of Knight
being
subsumed into the combination mark BLACK KNIGHT. I agree with
counsel for the respondent that there is a clear distinction in
connotation
between KNIGHTS and BLACK KNIGHT and the marks do not
look or sound the same. I therefore find that the applicant has
failed to
establish that the customers are likely to interpret the
trademark as if it is used by the undertaking from which the
offending
party’s goods originate and that the offending
trademark creates an impression of a material link between the
offending product
and the owner of the marks.
[23] I now turn to deal with the claim
of passing off. Passing off occurs when one trader represents to the
public that his goods
or merchandise are of another trader. The
applicant’s claim of passing off relates to the use by the
respondent of the mark
BLACK KNIGHT, which the applicant contends is
confusingly similar to its trade mark KNIGHTS in respect of which the
applicant alleges
it has acquired a substantive reputation and
goodwill. The applicant must allege and prove the requisite
reputation, misrepresentation
and damage. The reputation must be in
existence at the time the offending party entered the market and it
must exist when the misrepresentation
is committed (see
Caterham
Car Sales and Coach works v Birkin Cars (Pty) Ltd
[1998] ZASCA 44
;
1998 (3) SA 938
para 22). A reputation in a trademark does not come into existence
independently of the goods in connection with which it is used.
It
originates in the quality of a manufacturer’s goods and is then
associated with that manufacturer’s trademark or
get-up (see
John Craig (Pty) Ltd v Dupa Clothing Industries
1977 (3) SA
144
at 155 E-F)
[24] The implied representation will
usually take the form of 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. There must be a causal connection, between the offending
mark and likely damage to the
applicant consequent upon the use of
its registered mark. 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.
[25] The extent of reputation is of
utmost importance in passing off proceedings as it speaks to 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 respondent are those of the applicant
or are connected with them (see
Brian Boswell Circus (Pty) Ltd and
Another v Boswell-Wilkie Circus (Pty) Ltd
1985 (4) SA 466
(A) at
479B-]).
[26] In
Premier Trading Company
(Pty) Ltd and another v Sporttopia (Pty) Ltd
2000 (3) SA 259
(SCA) at 266J-267C Nienaber JA described reputation in the following
terms:
‘
Passing-off,
to be actionable, erodes the plaintiff’s goodwill. Goodwill is
the product of a cumulation of factors, the most
important of which,
in the context of passing off, is the plaintiff’s reputation.
Reputation is the opinion which the relevant
section of the community
holds of the plaintiff or his product. If favourable, it would
dispose potential customers to patronise
the plaintiff or his product
and, if unfavourable, it would tend to discourage them from doing so.
The plaintiff’s reputation
may be associated with the symbol
under which his product is marketed. The symbol renders the product
distinctive of the plaintiff
or his product. A false representation
by the defendant about the symbol used by the plaintiff may encourage
or induce potential
customers of the plaintiff, believing that they
were patronising him, into patronising the defendant’.
[27] In
Adcock-Ingram Products Ltd
v Beecham SA (Pty) Ltd
1977 (4) SA 434
(W) at 437E-F Nicholas J
held:
‘
The
fact that a plaintiff can show that he has acquired a reputation in
the feature on which he relies, is not, however, enough
in itself.
The plaintiff must prove in addition that the defendant’s use
of the feature concerned was calculated to deceive.’
[28] The likelihood of confusion or
deception is a matter for the Court and this judgment must not be
surrendered to any witnesses.
The class of persons who are likely to
be the purchasers of the goods in question must be taken into account
in determining whether
there is a likelihood of confusion or
deception.
[29] The general appearance per se is
not determinative of whether the respondent’s product is
calculated to deceive because
one has to look not only at the
distinctive features of the mark but at what the purchaser himself
would likely be guided by, including
the whole get-up of the article.
The question is not whether there are differences in the marks but
whether the general appearance
is such that a person looking casually
at the marks would be likely to be deceived. Where additional words
are added to the offending
mark this will not suffice to obviate
confusion or deception where the term in practice will be abbreviated
to the offending word.
The Court must also be mindful of the fact
that the consumer will not necessarily have the advantage of seeing
the products side
by side and will not be able to conduct an in-depth
analysis of this kind.
[30] In
casu
, what has to be
proved is that by the trademark BLACK KNIGHT, the respondent is
representing its products to be those of the applicant
or to be
connected therewith. It follows that the Court must have regard to
the general impression created by the get ups in question
and to the
doctrine of imperfect recollection bearing in mind that the deception
or confusion need only last a fraction of time.
[31] The respondent does not dispute
the applicant’s sales figures and advertising expenditure but
it disputes their relevance
to the claim of passing off because they
relate to a period from 2004 onwards. It was argued on behalf of the
respondent that although
the applicant has made extensive sales of
its KNIGHTS whisky in South Africa since 1992, it has failed to
provide details of its
sales as at and prior to 2002 in order for the
Court to determine whether the sales at that time were ‘extensive’
and
gave rise to a reputation in 2002. There is force in this
submission and I am inclined to agree with it.
[32] Counsel for the respondent
submitted that from a proper reading of the founding affidavit it
would appear that the applicant
set out to prove that its marks,
get-up and whisky enjoyed a reputation as at the time the affidavit
was deposed to, namely 31
August 2011 instead of setting out to prove
its reputation as at 2002, and the applicant has failed to prove its
reputation as
at or prior to 2002.
[33] As I have already indicated, the
respondent has, in its answering affidavit set out in detail the
differences between the respective
get ups of the marks. Having
regard to the whole get up of the applicant’s whisky including
the mark KNIGHTS and the whole
get up of the respondent’s
whisky including the mark BLACK KNIGHT, it seems to me that the
respondent made it perfectly clear
that its whisky is its own and not
that of the applicant or associated in the course of trade with the
applicant. The evidence
of the respondent is that its whisky has been
on the market alongside that of the applicant for a period of some 11
years and there
have been no instances of actual confusion. This
seems to support the contention that this is a clear demonstration of
the absence
of likelihood of confusion or deception. I find the
following remarks of Laddie J in
Arsenal Football Club P.L.C. v
Reed
[2001] P.R.C. 46. at 922 at 931 in this regard apposite:
‘
Where
the claimant brings proceedings at or before the commencement of the
defendant’s trade, the court must assess as best
it can what is
going to happen in the real world of the marketplace. That may not be
easy and the court may sometimes get it wrong,
but the speed with
which the claimant comes to court - something which is frequently
necessary to avoid substantial damage - makes
this inevitable. On the
other hand, where the defendant has been carrying on his trade for
some time, the court can expect to be
relieved of the need to
speculate as to the likelihood of confusion and damage. In most
cases, it will be able to see what has
actually happened. If the
claimant has suffered substantial damage, one can expect it to be
apparent. Absence of evidence of confusion
becomes more telling and
more demanding of explanation by the claimant the longer, more open
and more extensive the defendant’s
activities are.’
[34] It ought to be emphasised that
the law of passing off does not confer monopolies on successful get
ups. In
Pasquali Cigarette Co. Ltd Diaconicolas and Capsopolus
1905 T
S 472
at 479 Solomon J reaffirmed this as follows:
‘
A
certain amount of imitation in these matters is perfectly legitimate.
If one manufacturer sees that another manufacturer gets
up his wares
in a form which attracts the public, he is entitled to some extent to
take a lesson from his rival and to copy the
getup, provided that he
makes it perfectly clear to the public that the articles which he is
selling are not the other manufacturer’s,
but his own articles,
so that there is no probability of any ordinary purchaser being
deceived. So long as it does that a certain
amount of imitation is
legitimate.’
In
casu
, I am persuaded that
the respondent took sufficient steps to ensure that its mark clearly
distinguishes its product from those
of the applicant and that there
is no probability that a notional customer may be confused or
deceived into believing that there
is a causal connection between the
said businesses. In any event, in the light of the respondent’s
evidence about selling
the products alongside, the absence of
evidence of actual confusion is telling.
In the result, I make the following
order
The application is dismissed with
costs.
___________
Mnguni J
Appearances:
For the Plaintiff :
Adv. I JOUBERT
Instructed by :
SPOOR
& FISHER.
C/O Lawrie Wright &
Partners
Inc.
For the Defendant :
Adv. G.E. MORLEY SC
Instructed by :
BERNARD VUKIC POTASH
& GETZ
C/O De Villiers, Evans & Petit
Date of Hearing :
18 April 2012
Date of
Filing of Judgment :
23 May 2013