National Brands may yet wish to have these matters tried out, and as they have received only passing
attention in this case, and as there is sufficient evidence to prove fraudulent design without resort to them, I
think it would be wiser for me to say nothing further about them.
[19] Returning to Tennis and Tea Lovers biscuits, Blue Lion concedes that there are similarities in getup, but
contends that what distinguishes the one product are the marks Tennis, Bakers and the Bakerman logo, whilst
the other is distinguished by the marks Tea Lovers and the Kwality Chef Device. As to the latter I have already
pointed to its apparently designed lack of prominence, and as to Tea Lovers I think it to have been
demonstrated that there has been an attempt not to distinguish it from Tennis but rather to confuse the two.
It is the word Tennis that particularly identifies the coconut biscuit and it clearly forms part of National Brands'
reputation in those biscuits. This is not, therefore, a simple case of similar getups distinguished by clear word
marks, such as is discussed by Webster and Page South African Law of Trade Marks 4 ed paragraph 15.26.8.
The most important word mark is also compromised. That the marks Bakers and the Bakerman logo are also
prominent and important does not detract from that fact, particularly when one has regard to the low
prominence accorded to Blue Lion's Chef and Kwality marks.
[20] For these reasons I conclude that the likelihood of deception and confusion has been established.
[21] The other element of passing off, proof of reputation, does not arise here. Blue Lion concedes, as in the light of
the evidence it had to, that National Brands has a wellestablished reputation in its Tennis biscuits.
[22] Accordingly I am of the opinion that Southwood J, a quo, in the course of a careful and comprehensive
judgment, was correct both in granting the interdict which he did and in ordering its enforcement pending the
appeal.
[23] The appeal is dismissed with costs, including the costs consequent upon the employment of two counsel.
(Harms, Zulman, Cameron and Mthiyane JJA concurred in the judgment of Schutz JA.)
For the applicant:
CF Puckrin SC and R Michau instructed by Berkow, Feinberg & Suliman, Pretoria
For the respondent:
P Ginsburg SC and O Solman instructed by Macrobert, De Villiers, Lunnon & Tindall Incorporated, Pretoria