The Supreme Court of Appeal recently handed down an important trademark judgment. It dealt with the issue of the similarity of goods, which is important because the law says that a mark will be too close to an earlier registration if it is identical or similar to that mark, and if it is used for goods that are so similar to the goods for which the earlier mark is registered that there is a likelihood of confusion.

The marks here were practically identical – the earlier mark was Zonquasdrift and the registration covered wine, whereas the later mark was Zonquasdrift (no ‘t’) Vineyards and it was used for wine grapes. The Western Cape Court had decided that there was no infringement because the differences in the goods were such that there would be no confusion. The SCA upheld that finding.

The SCA unfortunately didn’t consider any recent European authority on the issue of the link between the similarity of the marks and the similarity of the goods. It did, however, look at an old UK case (British Sugar) which said that in order to decide whether or not goods are similar you have to consider things like the uses of the goods, the users of the goods, and the likely trade channels through which they’re sold. It concluded that wine and wine grapes are very different. Notwithstanding the fact that the one is a raw ingredient of the other.

The SCA went into a great deal of detail about how the wine industry works. It said that many wine grape farmers never actually make wine, but simply sell their grapes to co-operative cellars who make wine under their own brands. And it said that, whereas wine is bought by the general public, wine grapes (which are not fit for human consumption, the grapes we eat are called table grapes) are only ever bought by specialist wine makers. So there was very little chance of confusion ever arising.

This judgement should probably be seen as part of a more restrictive interpretation of trademark rights. Which does means that brand owners will have to give careful consideration to what goods they cover in their trademark applications. Some may decide to go for a broader coverage than in the past. But with that does, of course, come the risk of an attack based on the fact that there was no intention to use the mark on certain of the goods.

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