3
[2]
The respondents opposed the registration of the appellant's trade mark
in terms of s 10(14) and 10(17) of the Trade Marks Act 194 of 1993 (the Act)
before the Registrar of Trade Marks (the Registrar). The Registrar transferred
the matter to the Gauteng Division of the High Court, Pretoria (the high court).
The argument proceeded on the basis that if there was no deception or
confusion between the marks in this form there would be no deception or
confusion where the word PEPPADEW, or the device, were used separately.
The high court (Tlhapi J) upheld the respondents’ case in terms of s 10(14) of
the Act. Dissatisfied with that decision, the appellant appealed to the full court
(Mothle J, Molopa and Hughes JJ concurring). The full court agreed with
Tlhapi J and dismissed the appeal.
[3]
This appeal, with the special leave of this court, concerns only the
opposition in terms of s 10(14) of the Act. This section provides:
‘10. Unregisterable trade marks. – 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: . . . .
(14) subject to the provisions of section 14, 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.’
[4]
The respondents’ composite mark, contains a side-view of a single
rounded pepper stalk and the word PEPPADEW, printed in block capitals and
with a vertical orientation. They allege that the said registrations preclude the
appellant’s registrations. The respondents’ composite trade mark is
represented as follows: