10 ‘pepper’ but is also applied to a wide range of products offered by various other parties throughout the world. If a monopoly is granted in respect of PEPPA it is hard to see how it would not extend to the use of pepper as a prefix, as in pepperoni, pepperpot (a West Indian stew), pepperwort or pepper sauce, all of which are in common usage. As the respondent’s registration extends to confectionery peppermint would also be affected. But one cannot monopolise the commons of the English language in that way. [23] The finding by the full court that the two trade marks are the same because they commence with the word PEPPA, is incorrect. The conclusion that, had it not been for the addition of a pepper device to each parties’ mark, the result would have been the same as in Yuppiechef, that is, the mark would not be considered to be confusingly similar, is wrong. The parties’ marks do not have identical devices. The devices are far from being identical. A notional purchaser or consumer looking at the two marks, even fleetingly, would be in a position to tell them apart. The differences between the two marks are apparent and would be identified without difficulty or prior coaching by members of the public. Viewed together and side by side the respective marks and devices are not the same. A purely verbal comparison is not enough. The court must transport itself to the marketplace to try and visualise how customers of the goods in relation to which the marks are used would react. Applying the test in Plascon-Evans, which has been followed in a number of decisions by this court, the marks are visually, phonetically and conceptually dissimilar. It is unlikely that a significant section of the public would consider that PEPPAMATES is the same as PEPPADEW. The full court erred in failing to take into account the distinguishing features between the two marks. [24] The appeal is upheld with costs, such costs to include the costs of two counsel where so employed. The order of the full court is set aside and substituted with the following: 1 The appeal is upheld with costs, such costs to include those consequent upon the employment of two counsel. 2 The order of the full court is set aside and replaced by the following: