Pretoria - Would the consumer confuse Peppamate with Peppadew - the small red and sweet peppers - when they saw them on a shop shelf, especially if each package depicted a pepper with a stalk on its packaging?
This was the question the North Gauteng High Court in Pretoria was twice confronted with during a trademark dispute. Both times Peppadew came out the victor.
Piquante Brands International, which owned the Peppadew trade mark, in 2014 turned to court to oppose Dinnermates CC’s application to register the trademark for its peppers called Peppamate. These were packed in a container with a side view picture depicting a single rounded pepper with a stalk.
Piquante Brands had already registered its Peppadew product, also packed in a container depicting a side view picture of a single, rounded pepper with a stalk. It objected to the possible registering of Peppamate’s trademark, stating that consumers would confuse the two products.
But owners of Peppamate said there was considerable demand in the market for this little sweet pepper and space for another, similar product.
The court at the time ruled in favour of Peppadew. Judge Vivian Tlhapi said the only difference in the words were the “dew” and the “mate” at the end of the word “peppa”. She concluded that the similarities in the two products were such that the consumer could confuse the two products.
But the owners of Peppamate took the matter on appeal. This time, Judge Billy Mothle said the court had to transport itself from the courtroom to the marketplace and look at it through the eyes of the average consumer.
The owners of Peppamate said the owner of the Peppadew trademark could not claim monopoly of the trademark “peppa”.
The respondent admitted it did not invent the word “peppa”, but said the dispute concerned not only the wording, but the logo, which was similar.
Judge Mothle compared this case to the judgment in the case of Yuppie Chef v Yuppie Gadgets, in which the Supreme Court of Appeal found the two products could not be confused. The SCA found the words “chef” and “gadgets” were worlds apart.
In this case there was a difference in the fonts in the marks of “peppa”, but the two trade marks exhibited several similarities.
Apart from both carrying the word “peppa”, both words have a two-syllable compound name and the logos are similar.
Judge Mothle said the round pepper with a stalk on both products was the most visible feature common to the two trade marks.
“It stands out strikingly as the main dominant feature of the marks and is consistent with the condiment of pepper traded by both parties.
“It is in my view likely to impact on the mind of the consumer.
“The consumer’s impression, struck by the common word ‘peppa’ and looking at the device (packaging) in the marketplace, is likely to be deceived and confused.”
He subsequently dismissed Peppamate’s appeal.