[5] The issues that arose on appeal will be better understood against the background facts that follow. I find it
convenient to start with the geographical layout of the area involved. Zonquasdrift is the name of a natural
crossing over the Berg River or a "drift" in Dutch, which eventually became a "drif" in Afrikaans. Historians tell
us that the existence of the crossing has been well documented under that name since at least 1660 when
the Dutch colonists first used it to cross the natural hindrance to their passage into the interior, created by
the Berg River. In more modern times, Zonquasdrift has also become known as the end of the first stage of
the four day Berg River canoe marathon. The farm Zonquasdrift was originally granted in the early 1700s.
Rather selfevidently, the crossing is on that original grant. The farm of the appellants is that subdivision of
the original grant which retained the original name. On the one side of the Berg River the crossing is now on
the appellants' farm. On the opposite side of the river the crossing is on the farm Klein Zonquasdrift. The farm
on which the respondent conducts its business is on the same side of the river as Klein Zonquasdrift. It is
about 300 metres from the crossing and, as I have said, about one kilometre from the appellants' farm. It is a
subdivision of the farm Bosplaas. Until it was given the name Zonquasdrif Vineyards in 2008, it was never
known by that name.
[6] The appellants are not involved in winemaking. They do not have a cellar on Zonquasdrift farm nor do they
employ any winemakers. It is a wine grape producing farm that delivers its grapes in bulk to a cooperative
cellar, Riebeek Cellars. The vinification process is conducted exclusively by Riebeek Cellars, which sources its
wine grapes from 32 different farms in the Swartland area, being the members of the cooperative. The wine
is then sold under the trade mark Riebeek Cellars. As a result of this communal system, it is generally not
possible to say, with reference to a particular wine, where the grapes originally came from. The grapes are
pooled by Riebeek Cellars and the wine sold under its label with the designation that it is a wine of origin
Swartland under the wine of origin scheme, to which I shall presently return.
[7] An exception to the general exposition conveyed thus far, pertains to wine made by Riebeek Cellars from
grapes of the chenin blanc cultivar that originates from two blocks on the appellants' farm about six hectares
in extent which had been registered under the wine of origin scheme as a single vineyard. Pursuant to an
arrangement between the appellants and Riebeek Cellars, chenin blanc wine from this single vineyard is kept
separate and bottled under the special Zonquasdrift label. This wine is then exported by the appellants for
sale in Germany. It also bears the designation wine of origin Swartland. Moreover Riebeek Cellars has in 2009
bottled a chenin blanc wine from the appellants' single vineyard as "Limited Release Chenin Blanc" under the
Riebeek Cellars trade
Page 649 of 645 (SCA)
mark, but with the indication on the label that it comes "from a designated block of vines in a 47year old
single vineyard on the farm Zonquasdrift in the Swartland". In short, the appellants' business is therefore that
of a wine grape producer and on a more limited scale, that of a wine exporter under its registered trade mark.
What should perhaps be pointed out for the sake of completeness, is that the appellants never registered
any trade mark for their wine grapes in class 31.
[8] The respondent was incorporated on 4 August 2008. Its majority member and the deponent to its answering
affidavit is Mr Petrus Walters. In the same way as the appellants, the respondent is also a wine grape
producer. But, unlike the appellants, it has never sold wines under any name. Neither has it ever made any
wine. It sells its wine grapes in bulk under its registered name, Zonquasdrif Vineyards, to a corporate wine
cellar in the Worcester area. By contrast, the farm Klein Zonquasdrift, which is directly across the Berg River
from the appellants' farm, produces table grapes. Table grapes are not used to produce wine. Conversely,
wine grapes are not suitable for consumption as a fruit in the way that table grapes are. In consequence,
wine grapes are not sold to the general public, but only to wine cellars or wine cooperatives. As to why the
respondent was given the corporate and trading name Zonquasdrif Vineyards CC, Walters explained that he
found the original name of the farm on which the respondent conducts business, Bosplaas, rather uninspiring.
In consequence he decided to link its name to the historical nearby crossing, which is wellknown to the
public, so as to indicate the geographical location of the respondent's farming business.
[9] In delineating the issues it is perhaps useful to identify that which falls outside the ambit of this appeal. The
appellants did not rely on passing off or any other form of unlawful competition to justify any of the relief
sought in the court a quo. The case relied solely on an infringement of their trade mark rights. Potential
confusion resulting from similar names of farms situated in close proximity to one another, for instance, is
therefore of no consequence. Equally irrelevant is the respondent's contention that the appellants had failed
to establish a reputation either to its grape production or its wine. The fact that the appellants thus far have
only sold their wine in Germany, is not material. What we have to look at is the "notional use" that the
appellants can make of their trade mark, which would obviously include the marketing of wine under that label
in South Africa (see eg PlasconEvans Paints Limited v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
641EI [also reported at [1984] 2 All SA 366 (A) Ed]).
[10] The interdict application, as I have said by way of introduction, rested squarely on section 34(1)(b) of the
Trade Marks Act. In relevant part this section provides:
"(1)
The rights acquired by registration of a trade mark shall be infringed by
(a)
. . .
(b)
the unauthorised use of a mark which is identical or similar to the trade mark registered, in the course of
trade in relation to goods
Page 650 of 645 (SCA)
or services which are so similar to the goods or services in respect of which the trade mark is