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appealable as if it were a decision of a single judge, ie, to the Full Court of the Transvaal Provincial Division
(subsection (2) read with subsection (4)(a)). Thereafter an appeal to this Court was available (subsection (2))
for which ''special'' leave to appeal was not necessary (subsection (4)(b)). At the time (1963)
Page 245 of [2001] 4 All SA 242 (A)
the concept of special leave did not exist; it only acquired a particular connotation when sections 20 and 21 of
the Supreme Court Act 59 of 1959 were amended by the Appeals Amendment Act 105 of 1982. Since then civil
appeals from the Full Court were made subject to special leave by this Court and the Full Court sitting as a
court of appeal no longer had the competence to grant leave to appeal (section 20(4)(a) of the Supreme Court
Act). The application to the Full Court was therefore illconceived. Because of section 63(4)(b) read with section
20(6) of the Supreme Court Act, special leave of this Court was also not required. The appellant thus had an
untrammelled right of appeal.
[6]
Reverting to the condonation application, the appellant was obliged to file its notice of appeal within one
month of the granting of the judgment or order appealed against (SCA Rule 7(1)(a)). Because of its attitude
concerning leave to appeal it was substantially out of time: the judgment was delivered on 4 March 1998 and
the notice of appeal filed on 21 June 1999, which was less than two weeks after the judgment of Van der Walt
J had become available on 10 June. The respondent refused to agree to an extension of time under Rule 7(4)
and filed a lengthy answer. The respondent no longer opposes the application except on the ground that there
are no prospects of success. Since, as will appear in due course, I am of the view that the appeal should
succeed, this ground of opposition is without merit. Having acted on the advice of two senior counsel, it cannot
be said that the appellant was culpable in having failed to file its notice of appeal in good time and the
condonation application must succeed. The matter of costs will be dealt with later.
[7]
After all these preliminaries, the attention can now be directed to the merits of the appeal. The respondent is
the registered proprietor of a number of antedating registrations which, it alleges, create a bar to the
appellant's registration. Although the pleadings are cast wider, the case can be decided with reference to the
provisions of section 17(1) of the 1963 Act:
''Subject to the provisions of subsection (2), no trade mark shall be registered if it so resembles a trade mark
belonging to a different proprietor and already on the register that the use of both such trade marks in relation
to goods or services in respect of which they are sought to be registered, and registered, would be likely to
deceive or cause confusion.''
The introductory proviso is inapplicable and all the trade marks concerned are primarily directed to dairy
products. Their wider registration or proposed registration does not assist in answering the main question,
namely whether there would be a likelihood of deception or confusion.
[8]
The respondent's trade marks which have a bearing on the matter are four in number: (a) no 60/2609/1
Dairybelle, (b) no 65/1957 Dairybelle, (c) no 65/1958 Dairy Belle with cow device and (d) no 75/0908 Jerseybel
and cow device. The fifth registration which relates to Dinner Bell adds nothing to the debate and is only
relevant in the context of the socalled
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series objection which will be dealt with in due course. These marks are all independent marks, ie they are not
associated marks. The registration of (c) contains an admission that cow devices are common in the foodstuff
classes and that of (d), somewhat similarly, that bovine devices in general
Page 246 of [2001] 4 All SA 242 (A)
are common to the class but that the admission does not relate to the bovine device as depicted in the mark.
They are thus represented:
[9]
The appellant's proposed mark looks like this: