Intellectual Property – confusion
between similar goods
In Chantelle v Designer Group (Pty) Ltd [2016] JOL 35151 (GP) the court had to decide
if the decision by the Registrar of Trade Marks to allow Designer Group’s trade
mark to proceed to registration, was correct.
Designer Group had applied for the
registration of the trade mark ”Chantelle” in respect of soaps, perfumery,
essential oils, cosmetics, fragrances, deodorants and deodorisers,
anti-perspirants and body care products. Chantelle, the appellant, was the
registered owner of a trade mark with the identical name, registered in respect
of girdles, brassiers, articles of underclothing and swim-suits.
Chantelle asked Designer Group to
withdraw its application for registration. When Designer Group refused, Chantelle
opposed, but the Registrar of Trade Marks allowed Designer Group’s trade mark
to proceed to registration. Designer
Group appealed the decision by Registrar of Trade Marks.
Held that
the two marks were exactly the same. The use of the identical mark in relation
to different classes of goods (clothing and cosmetics) then had to be compared.
The onus was on the respondent to dispel the likelihood of confusion amongst
consumers.
The Court concluded that it was
likely that the average observant consumer of the appellant's goods, stumbling
upon the respondent's cosmetics, bearing the identical mark, notionally in the
same shop and notionally a few counters away, would be confused and deceived
into believing, albeit perhaps momentarily, that the cosmetics of the
respondent originate from the same source as the clothing of the appellant. The
fact that the appellant's products consist of lingerie and swim-wear, as
opposed to "outer" garments, would make no difference to the
incidence of confusion and deception.
The appeal was upheld.
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