the name Compass Logistics. After pointing out that the two marks were not identical in the light of LTJ
Diffusion SA v Sadas Vertbaudet SA the court proceeded to consider whether they were confusingly similar.
Laddie J said this (paras 2425):
'[24] . . . 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 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.
[25]
Applying those considerations to the facts of this case, there can be little doubt that a likelihood of
confusion exists between the Defendant's use of the sign or mark COMPASS LOGISTICS in relation to its
business consultancy services and the notional use of the mark COMPASS used in relation to business
consultancy services, including those in relation to which the Defendant specialises. The dominant part of
the Defendant's mark is the word compass. For many customers, the word logistics would add little of
significance to it. It alludes to the type of area of consultancy in which the services are carried out.'"
Harms DP then continued as follows:
"[14] This means that one has to assume reasonable notional use by a trademark owner of the name Century City
for purposes of providing services for reserving and maintaining accommodation at apartments. The appellant's
use of Century City Apartments would to my mind have given rise to the likelihood of confusion. I therefore
conclude that the appellant's use of its brand name infringed the mentioned trademark registration. The same
applies to the use of its domain name. This does not mean that the registration remained unimpeachable. I
shall revert to this issue.
[15]
I do not agree with the High Court that this conclusion applies to the appellant's corporate name 'Century City
Apartments Property Services CC'. It is in my view materially different from the trademark Century City. I can
do no better than to refer to the facts in 10 Royal Berkshire Polo Club Trade Mark [2001] RPC 643 esp at 653.
The question was whether this mark was confusingly similar to the wellknown Polo mark. The court held that it
was not because it did not capture the distinctiveness of the trademark owner's mark; that the message of the
mark came from the words in combination; and that the word Polo
Page 292 of [2014] 2 All SA 282 (SCA)
functioned adjectivally in the context of the applicant's mark. Adjectival use may be distinctive from the use of
a word as a noun. The same considerations apply too in the present case to exclude the reasonable possibility
of confusion or deception."
[21] The word STAR is a word in common use. Pioneer uses it in conjunction with the word WHITE to distinguish
and identify its product. Accepting that it has been successful in doing this, as is implicit in its claim to
reputation, the absence of the word WHITE would, in my view, be significant to a customer purchasing super
maize meal. As Bothaville Milling's trade mark registration of the Star label reflects, the word "STAR" and the
device of a star as such are common features of marks registered in the same class, that is, maize meal, samp
and maize rice.
[22] There is undoubtedly some visual similarity between the two getups, principally caused by the combination of
a broadly white background with the symbols and lettering in red and green. However, the moment a
customer saw a package the dissimilarities would become obvious. In my view, they are sufficiently apparent
and obvious to hold that there is no reasonable likelihood of confusion between the two.
[23] However, if I had some residual doubt about the position, it would be dispelled by the fact that there is simply
no evidence of any confusion in the market place between the two products, in the period between 2001 and
the commencement of proceedings in August 2011. Although such evidence is not essential to prove a
likelihood of confusion in the market place,13 it can, if it is present, tip the balance in one direction and, if
absent, tip it in the other. 14 It is most surprising that after nearly 10 years of competitive trading, with what
are said by Pioneer to be confusingly similar getups, not a single customer or store has reported any
confusion.15 There is not even someone such as the lone customer who, in one case, was misled in her
purchase of biscuits,16 nor anything resembling the finding of a mixup of products on the shelf that occurred
in the same case.17 Instead, the evidence shows that Bothaville Milling has sold its STAR product principally
to the wholesale market and, at the date of its answering affidavit, had 102 clients in 68 different towns,
some of them being large national chains. These wholesalers have then sold STAR super maize meal to retail
outlets or possibly individual customers in many parts of the country, but especially in the Free State,
KwaZuluNatal and the Eastern Cape. Yet there is no evidence of a wholesaler being misled, or of a retail
customer complaining that they had inadvertently purchased STAR when they wanted to buy WHITE STAR.
Page 293 of [2014] 2 All SA 282 (SCA)
[24] I do not think that this can be attributed to potential customers being unsophisticated or, as suggested in
argument, to the different brands of super maize meal, all being essentially the same. The evidence from
Bothaville Milling is that, even in rural areas, which is the principal target area at which its product is aimed,
the average purchaser is brand conscious and knows their preferred brand and its qualities and is familiar
with both its packaging and its price. This is important, as the evidence is that STAR generally retails at a
discount of about 15% to the price of WHITE STAR. The evidence of brand surveys put up by Pioneer in
support of its claim to a reputation shows that maize meal is one of the most brand loyal products on the