Coca Cola Company v Melton Trading (Pty) Limited

• Jurisdiction: South Africa
• Judge: Abey Tuwe (Mr)
• Court: Registrar of Trade Marks
• Citation: 2015 JDR 2404 (TRM)
• Docket Number: 2004/11492

Tuwe AN:

The Applicant for registration is Melton Trading (Pty) Ltd, a South African company (hereinafter referred to as "the Applicant"). The Applicant applied for the registration of the trade mark application no. 2004/11494 BUDDY COLA label in class 32 in respect of:

''Mineral and aerated waters and other non-alcoholic drinks including soft drinks"

The Opponent is the Coca-Cola Company, a corporation duly organised and existing under the laws of the State of Delaware, USA, of One Coca-Cola Plaza, Atlanta, Georgia, 30313, USA. The Opponent is the proprietor of trade mark registration no. 1976/0284 DYNAMIN RIBBON device in class 32 in respect of:

"Non-alcoholic beverages and preparations for making the same"

The Opponent opposed the registration of the Applicant's BUDDY COLA label on the ground that it offended against the provision of Section 10(14) of the Trade Marks Act, Act No. 194 of 1993 ("the Act").

Section 10(14) provides that:

10

Unregistrable trade marks

The following trade marks shall not be registered as trade marks or, if registered, shall, subject to the provisions of Sections 3 and 70 be liable to be removed from the register.

(14)

subject to the provision of section 14, a mark which is identical to a registered trade mark belonging to a different proprietor or so similar thereto that the use thereof in relation to goods or services in respect of which it is sought to be registered and which are the same as or similar to the goods or services in respect of which such

2015 JDR 2404 p3

Tuwe AN

trade mark is registered, would be likely to deceive or cause confusion, unless the proprietor of such trade mark consents to the registration of such mark ''

The deponent to the Opponent's founding affidavit submitted that the Applicant's BUDDY COLA label trade marks wholly incorporated a ribbon device which was almost identical to the Opponent's DYNAMIC RIBBON device. It was her contention that the Applicant's mark was so similar to the Opponent's DYNAMIC RIBBON device so, as to be likely to deceive or cause confusion.

It was stated in paragraph 5.3 of the founding affidavit that in addition, the goods in respect of which the Applicant was seeking registration, were identical to the goods in respect of which the Opponent had its registration.

In its heads of argument the Opponent submitted that the word "buddy" was extensively used by members of the public to refer to the Coca-Cola products. In support of this...