7
the marks must be assessed by reference to the overall impressions created by the
marks bearing in mind their distinctive and dominant components. Furthermore, if the
association between the marks causes the public to wrongly believe that the
respective goods come from the same or economically linked undertakings, there is a
likelihood of confusion.’
This was approved by this court in Century City Apartments Property Services
CC & another v Century City Property Owners’ Association [2009] ZASCA
157; 2010 (3) SA 1 (SCA) para 13.
[14]
In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3)
SA 623 (A), in the context of an infringement case, Corbett JA made it clear
that the main or dominant features of the mark in question, as well as the
general impression and striking features, were all factors to be considered in
deciding whether there was a likelihood of confusion or deception (see also
Lucky Star Ltd v Lucky Brands (Pty) Ltd 2017 (2) 588 (SCA); 2016 BIP 180
(SCA) para 6).
[15]
It is against this background that I now turn to determine whether the
appellant’s marks are likely to cause confusion or deception to the members
of the public.
[16]
The respondents argue that a person looking at the marks used by the
parties is likely to be deceived. And it is enough if that deception lasts only for
a fraction of a second. The respondents, in support of their argument it called
in aid a principle restated in Orange Services. It argued that in a busy market
place an average consumer with an imperfect recollection would not be able
to distinguish the two marks. According to the respondents’ argument the
average consumer is likely to remember or recall the respondents’ mark
PEPPADEW and probably confuse the appellant’s trade mark with that of the
respondents.
[17]
The main complaint of the respondents is that their trade mark
registration incorporates a distinctive element, the prefix PEPPA, which is also
a dominant element of the appellant’s marks. The thrust of the respondents’