9
lines, with PEPPA above and in cursive script and MATES below in Roman
block capitals and underlined. The device of a pepper appears to the right of
the mark, almost as a full stop after the word MATES.
[21]
In opposing the registration the respondents are in essence asserting a
monopoly in the use of the word ‘PEPPA’. It cannot, under the guise that its
products are marketed locally and internationally, seek to preclude other bona
fide trade mark users from utilising the word PEPPA. The fallacy in this
argument is aptly demonstrated by the fact that the respondents are not the
only entity using the word PEPPA as its prominent element. There are other
trade marks such as PICKAPEPPA and PEPPAMELT. These trade marks
predate the respondents’ marks. Proprietors or owners of these trade marks
have rightly not claimed exclusive use of the word PEPPA. In my view the use
of the word PEPPA by other entities dispels the notion that the respondents
have the exclusivity or monopoly in the prefix PEPPA. I can see no reason
why the respondents’ trade mark cannot coexist with the appellant’s trade
mark. Coca Cola and Pepsi Cola have existed side by side for a considerable
period of time without any difficulty (see Coca-Cola of Canada Ltd v PepsiCola Co. of Canada Ltd [1942] RPC 127 (PC).
[22]
I agree with the appellant that PEPPA is an adaptation from the word
pepper, obviously chosen because the product to which it was first attached
was a pepper. Its use conjures up an image of a pepper. In conjunction with
the pepper device, it will be understood as referring to a product with peppers.
The distinctive element for trade mark purposes is therefore the suffix DEW,
which is wholly different from MATES. Because ‘PEPPA’ phonetically sounds
like ‘pepper’, the likelihood of confusion will not arise, especially if it is used in
combination with another word such as DEW or MATES. There is equally no
force in the argument that exclusivity in the word PEPPA lies in the
combination of the mark with a pepper device. The word PEPPA cannot
enhance in any way the exclusivity of the distinctiveness of the elements of
the mark. To my mind the depiction of the pepper in the mark only serves to
highlight the descriptive nature of PEPPA. A depiction of a pepper is, like the
word itself, descriptive. PEPPA is not only a variant spelling of the word