6
Works Software (Pty) Ltd [2013] ZASCA 158; 2013 BIP 313 (SCA) (Orange
Services) para 6, it was stated that in opposition proceedings the question
that falls to be decided is not how the parties use or intend to use their marks,
but how they would be entitled to use them if both of them were registered;
that is, how they might notionally be used.
[12]
In Orange Services, Nugent JA, citing the authors of Kerly’s Law of
Trade Marks and Trade Names, pointed out that the question whether there is
a likelihood of confusion or deception is a question of fact and that decided
cases in relation to other facts are of little assistance, save in so far as they
lay down any general principle. In a later decision of this court in Roodezandt
Ko-operatiewe Wynmakery Ltd v Robertson Winery (Pty) Ltd & another [2014]
ZASCA 173; 2014 BIP 294 (SCA) para 5, Brand JA elaborated on the
meaning of the value judgment to be made, in the context of an application to
remove a trade mark from the register. The principles adumbrated by him
apply with equal force to opposition proceedings. In Yuppiechef Holdings (Pty)
Ltd v Yuppie Gadgets Holdings (Pty) Ltd & another 2016 ZASCA 118 [2016]
ZASCA; 2016 BIP 269 (SCA) (Yuppiechef), an infringement case, Wallis JA
stated that the value judgment is largely a matter of first impression and there
should not be undue peering at the two marks to find similarities or
differences. He cautioned that it is not sufficient for judges to say merely that
their impression is that the alleged infringement mark is or is not likely to
deceive or cause confusion. Judges have an obligation to explain why they
hold their particular view.
[13]
In Compass Publishing BV v Compass Logistics Ltd [2004] EWHC 520
(Ch) at para 24 Laddie J said the following:
‘The likelihood of confusion must be appreciated globally, taking account of all
relevant factors. It must be judged through the eyes of the average consumer of the
goods or services in question. That customer is to be taken to be reasonably well
informed and reasonably circumspect and observant, but he may have to rely upon
an imperfect picture or recollection of the marks. The court should factor in the
recognition that the average consumer normally perceives a mark as a whole and
does not analyse its various details. The visual, aural and conceptual similarities of