Bergkelder Beperk v Vredendal Koöp Wynmakery and others
 4 All SA 215 (SCA)
Supreme Court of Appeal
9 March 2006
PE Streicher, E Cameron, CH Lewis JJA And A Cachalia AJA
2006 (4) SA 275 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
Intellectual property Trade marks Container marks Whether a container trade mark was capable of registration Test
remains whether the mark is capable of distinguishing.
The present case dealt with the registration of container trade marks. The appellant had adopted the Bocksbeutel
bottle since the early 1950s for marketing one of its wines. In 1962, it applied for the trade mark registration of the
container. When it agreed to limit the registration to alcoholic beverages produced in South Africa, a container mark
in the form of a Bocksbeutel was registered by the Registrar.
As the respondent also used the Bocksbeutel bottle for its locally produced wines, the appellant instituted action
for interdictory relief based on alleged trade mark infringement. That application was met with respondent's
counterapplication for expungement of appellant's trade mark on the ground that the container mark lacked the
necessary capability to distinguish appellant's wines from those of other wine producers.
Held Although the idea was initially met with some resistance, it eventually came to be generally recognised that
not only containers but also shapes of goods may perform a trade mark function.
According to the Court, as containers are not usually perceived to be source indicators, a container mark must, in
order to be able to fulfil a trade mark function, at least differ significantly from the norm or custom of the sector.
Even then, it does not necessarily mean that it is capable of distinguishing because the question remains whether
the public would perceive the container to be a badge of origin and not merely another vessel.
At the time the appellant's trade mark was registered, the Bocksbeutel could have performed a badge of origin
function enabling it, without more, to distinguish the wine of one producer from that of another. If the appellant's
bottle were to be compared to bottles of foreign wine producers selling in South Africa, no distinction could be
found. Thus, the container mark should not have been registered.
A further argument by the appellant was that that its Bocksbeutel could distinguish its locally produced wine from
any other locally produced wine considering that there were no other local producers at the registration date. The
Court supported the High Court's rejection of this argument. The appellant's argument was misconceived because
when its mark was stripped of its labelling, the
Page 216 of  4 All SA 215 (SCA)
bottle served no distinguishable feature and the wine bottled in that mark could have been produced anywhere.
The appeal was dismissed with costs.
For Intellectual property see:
· LAWSA First reissue Vol 29
Cases referred to in judgment
Abbott Laboratories v UAP Crop Care (Pty) Ltd  1 All SA 502
(1999 (3) SA 624) (C)
Abdulhay M Mayet Group (Pty) Ltd v Renasa Insurance Co Ltd and another
 JOL 5498 (1999 (4) SA 1039) (T)
AdcockIngram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W)
Beecham Group plc v Triomed (Pty) Ltd 2003 (3) SA 639 (SCA)