fear that the applicant will in the future lose business to Nino's Cavendish Square.
[47] It is unlikely that Nino's Cavendish Square has or will interfere with the applicant's business or infringe its
reputation. Cavendish Square is situated away from the city centre some 8 kilometres from Greenmarket Square.
Nino Greenmarket Square is only open during the day and not at night and its customers are predominantly people
who work in the city. Nino's Cavendish Square on the other hand draws its custom from people who visit the
shopping mall in which it is situated. The source from which the two restaurants draw their custom is quite distinct
and localised. The applicant also has no intention of expanding beyond Greenmarket Square and Camps Bay, or of
opening a restaurant in Claremont, and in fact gave an undertaking that it would not do so. There is thus no real
likelihood of overlap between the customer base of the two restaurants.
[48] Nino Greenmarket Square and Nino's Cavendish Square are also different types of restaurant and this was
accepted by Francesco Zanasi during his evidence. They differ in respect of both the getup of the restaurants and
the type of food served. Although Nino Greenmarket Square does have a breakfast, as well as a morning and
afternoon tea trade, its busiest trading period is during lunch time when it offers a wide range of Italian fare. As its
full name suggests, Nino's Cavendish Square is more of a coffee and sandwich bar than a full restaurant. It provides
mainly open sandwiches which Nino Greenmarket
Page 544 of [1998] 3 All SA 527 (C)
Square does not. Were it not for the similarity arising from the use of the name Nino it is highly unlikely that there
would be any confusion between the two.
View Parallel Citation
Any confusion that may exist between Nino Greenmarket Square and Nino's Cavendish Square is in the
circumstances unlikely to result in any harm to the applicant.
[49] The second respondent's business, Nino's Internet Café Foreshore, occupies a small area of some 30m2 within
The Incredible Connection. It is a store within a store. Seating is provided for a maximum of 30 people, some of it
adjacent to computers made available by The Incredible Connection. The people who patronise Nino's Internet Café
Foreshore are those who visit The Incredible Connection and wish to have something to drink or eat, while in the
shop or while utilising the computer and Internet services that are provided. A limited range of food is offered, quite
different from that to be found at Nino Greenmarket Square.
[50] The evidence indicates isolated instances of confusion by the public between Nino's Internet Café foreshore
and Nino Greenmarket Square. There is nothing which shows that the applicant has been or is likely to be harmed
as a consequence of the operation of what is essentially a small coffee shop inside another store. Francesco Zanasi
testified that he is not really interested in Nino's Internet Café Foreshore and he has in fact never been to look at it.
He accepted that Nino Greenmarket Square is most unlikely to lose custom as a result of Nino's Internet Café
Foreshore.
[51] In the circumstances the applicant has not shown that the respondents' conduct in relation to Nino's
Cavendish Square and Nino's Internet Café Foreshore has or is likely to result in injury to the applicant. The
applicant has not established actual harm or a reasonable apprehension thereof which justifies the grant of a final
interdict.
The second application: the alleged trade mark infringement
[52] The first respondent is the proprietor in South Africa of a registered trade mark, number 94/0918, in respect of
Nino's Italian Coffee and Sandwich Bar and device in class 42, schedule 3, in relation to
"services relating to the advising on, supplying and promoting of commodities; selection and display of goods; advice and
assistance to the prospective purchasers of such goods; services relating to the procurement and provision of food and
beverages of all kinds, fast food services, roadhouses, canteens, restaurants, cafeterias, cafes, snack bars, bakeries,
catering services and all other services concerned with the provision of food and beverages; bottle stores and offsales,
hotels, motels, retail, wholesale and merchandising services."
The mark is represented by a shield, with the name "Nino's" on top. Below the name the shield is divided into four
parts, one part depicting a cup and saucer, another part depicting part of a plate with a knife and fork, while the
other parts have decorative platters. Beneath the shield is a scroll with the words "Italian Coffee and Sandwich
Bar" in the middle. The trade mark is limited in that it gives no right to the exclusive use of the phrases "Sandwich
Bar" and "Italian Coffee" and the devices of a cup, saucer, knife and fork, otherwise than as shown in the
application, each separately and apart from the mark as a whole. The trade mark
View Parallel Citation
incorporates the words "Nino's Italian Coffee and Sandwich
Page 545 of [1998] 3 All SA 527 (C)
Bar". The trade mark was registered on 31 January 1994. In terms of section 3 read with section 70(2) of the Trade
Marks Act 194 of 1993 ("the Act"), which came into force on 1 May 1995, the trade mark is deemed to be registered
under the Act and the provisions of the Act apply.
[53] The applicant became aware that the first respondent was the proprietor of the trade mark by 11 March 1997