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cellars make use of specialists in the wine industry to buy their wine grapes from approved suppliers who
comply with their own established quality control standards. The chances of these buyers confusing the
respondent's wine grapes as the source of the appellants' wine can, therefore, safely be excluded.
[17] The only enquiry worthy of pursuit, therefore, relates to the likelihood of notional purchasers of Zonquasdrift
wine believing that they originate from the same farm as the respondent's grapes. The first question raised
by this enquiry is whether the notional wine purchaser would be aware of the respondent's grapes that are
sold under its trade name. Since the respondent does not market its wares in retail outlets or advertise them
in the public domain, I cannot see why this awareness should be assumed. My second problem with the
appellants' argument is this: in order for the notional purchaser to be confused in thinking that Zonquasdrift
wine comes from the same farm as Zonquasdrif grapes, he or she must infer that (a) there is a farm
Zonquasdrift; (b) that farm is owned by the same entity as the trade mark; and (c) that the wine is made of
grapes grown on that farm. As I see it, however, there is no reason to assume that the notional purchaser
will make all these inferences just by looking at the appellants' trade mark on their wine label.
[18] As to (a): it is well known that many trade marks in the wine industry are not associated with farms at all.
That is so even where the trade mark bears resemblance to the name of an existing or nonexisting farm. As
to (b): even if the notional wine purchaser knew of the farm Zonquasdrift, there is no reason to think that he
or she would have known or infer that the farm and the trade name belong to the same proprietor. As to (c):
even if the notional purchaser knows or infers that there is a farm Zonquasdrift which belongs to the same
entity as the trade mark, he or she would have no reason to infer that Zonquasdrift wine is made of grapes
grown on that farm. An interesting exchange on the papers illustrates this point. In the answering affidavit
Walters contended that, since the appellants' Zonquasdrift wine is made by Riebeek Cellars that sources its
grapes from 32 farms, it cannot even be said that the wine sold under the appellants' trade mark is made
from grapes grown on its farm. In reply the appellants then said and this was confirmed by Mr Izak Bester
who is the winemaker at Riebeek Cellars that Zonquasdrift wine is indeed made from chenin blanc grapes
grown on the appellants' farm. The moral of the story is this: although there is no reason to doubt the
correctness of Bester's version, he was clearly one of a very few who could say where the grapes came from.
For all the potential purchaser knows, the grapes could come from one or more of 32 farms.
[19] Even if the appellants were, therefore, to make their own wine on the farm Zonquasdrif, they would not be
obliged to source the grapes for winemaking under their trade mark from that farm only. In consequence the
customer would have no basis to think that they did. According to wellestablished principle, a trade mark
serves as a badge of origin, in the sense that it identifies and guarantees the trade origin of the goods to
which it applies (see eg Verimark (Pty) Ltd v BMW Agbmw AG v Verimark 2007 (6) SA 263 (SCA) at paragraphs
45). But in the wine industry a
Page 653 of 645 (SCA)
trade mark in respect of wine serves to guarantee the origin of the wine only. The badge of origin in respect
of the grapes from which that wine is made is provided by the wine of origin scheme ("WO scheme").
[20] The WO scheme is governed by regulations promulgated (under GNR 1434 of 29 June 1990) in terms of
section 14 of the Liquor Products Act 60 of 1989. It emanates from the recognition in the wine industry that
the "terroir" or area where the grapes are grown has a significant bearing on the wine made from these
grapes. Under the WO scheme geographical areas in which wine are produced are divided into nine units.
These units are further divided into increasingly smaller areas called "regions", "districts" and "wards". The
farms of the appellants and the respondent, for instance, fall into the Swartland region and the Riebeek
Kasteel district. As to the origin of the grapes from which the wine is made, the potential purchaser can
therefore rely on the designation of origin on the label. Since the appellants' wine is designated as a wine of
origin Swartland, the purchaser can assume the grapes are grown in that area. But with regard to the origin
of the grapes he or she can assume nothing more. For these reasons, I find no substance in the appellants'
contention that they have established a likelihood of confusion with regard to the origin of their wine and the
respondent's grapes.
[21] In further support of their case, the appellants sought to rely on the fact that at some stage Riebeek Cellars
sold its "Limited Release Chenin Blanc" with an indication on the label that the grapes came from the single
vineyard on the farm Zonquasdrift. But as I see it, this reliance is misconceived. The wine was sold under the
trade mark of Riebeek Cellars. The reference to Zonquasdrift related to appellants' farm not their trade mark
as the origin of the grapes which, as we know, is not covered by their registered mark.
[22] The appellants' further argument rested on two alleged incidents of actual confusion. The first arose when
Eskom threatened to cut off the electricity supply��to the appellants' farm because the respondent had failed
to pay its account. The second occurred when the appellants' farm manager was asked by a third party
whether the appellants had opened a new business under the name Zonquasdrift Vineyards CC. But I find
the argument based on these instances equally unsustainable. The confusion demonstrated by these
incidents, as I see it, probably arose from the similarity between the respondent's name and that of the
appellants' farm. It, therefore, had nothing to do with confusion created by two similar marks.
[23] This brings me to the appellants' application in terms of section 20(2)(b) of the Close Corporations Act, to
compel the change of the respondent's close corporation name on the basis that it is calculated to cause
damage to the appellants. As it turned out, this part of the case does not require any lengthy discourse. The
reason for this emanates from the narrow foundation upon which the appellants eventually relied as the basis
for this relief. All that the appellants contended for in the end was that, because the use of the respondent's
name results in an infringement of their trade mark, it is calculated to cause damage to them. Since I hold the