8
argument is that the combination of PEPPA and the single-rounded pepper
and stalk device distinguishes their products from all other trade marks which
might contain the element PEPPA. The case advanced is that the appellant’s
trade mark is similar in that it also incorporates the two distinctive features
that have been registered by the respondents, namely PEPPA and the sideview of a single rounded pepper and stalk device.
[18]
The gravamen of the respondents’ opposition is that the appellant
simply adopted its trade mark and added the word MATES to produce the
word PEPPAMATES. Echoing the full court’s reasoning, the respondents
expanded
their
argument
and
submitted
that
because
PEPPA
in
PEPPAMATES has the same semantic content as PEPPA in PEPPADEW,
the average consumer will be struck by the common element PEPPA and the
presence of the device and thus be confused and believe that the appellant’s
goods are from the same or a connected source as the respondents.
[19]
The appellant argues that PEPPA, either on its own or in combination
with others, is descriptive and easily recognisable as being derived from the
word ‘pepper’ and applies to a wide range of products and services by various
parties in South Africa. It argued that the respondents are not entitled to claim
a monopoly in the word. It contended further that PEPPA is not an invented
word but rather an adaption (or variant spelling) of the word ‘pepper’. The
contention advanced was that there are various parties that had registered
trade marks that include the word PEPPA and some of these trade marks had
been filed and registered prior to the first respondents’ trade mark
registrations.
[20]
The appellant argues that when regard is had to the two marks as a
whole, the elements DEW and MATES distinguish the parties’ respective
marks and are vastly different to each other and not likely to cause any
confusion or deception. It argued that the configuration of the marks is
completely different. PEPPADEW appears in a large upright rectangle
whereas the appellant’s mark does not have a rectangular device. In the
appellant’s mark the word PEPPAMATES is written horizontally over two