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ARTICLE · 29 JULY 2011

A Special Case Of Wine

Werksmans Attorneys
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The recent decision of the Supreme Court of Appeal in "Groupe LFE SA (Pty) Limited v Swartland Winery (467/09) [2011] ZASCA 4 (4 March 2011)" has important consequences for the use and adoption of the names of geographical locations as trade marks for goods, and particularly for alcoholic beverages including wine.

South AfricaIntellectual Property
Stuart Gardiner
Stuart Gardiner

Originally published May 2011

The recent decision of the Supreme Court of Appeal in Groupe LFE SA (Pty) Limited v Swartland Winery (467/09) [2011] ZASCA 4 (4 March 2011) has important consequences for the use and adoption of the names of geographical locations as trade marks for goods, and particularly for alcoholic beverages including wine.

Distinctiveness

It is invariable in law if a geographical name is to function and be registrable as a trade mark that it be distinctive. In other words it must in itself be able to identify and distinguish goods emanating from one source from goods originating from other sources.

Hence the word must either be inherently distinctive per se (aptly illustrated by the service marks GOOGLE and YAHOO) or it must have acquired the requisite distinctiveness as a result of its use as a trade mark in relation to the products concerned to such a degree that relevant persons in the marketplace – being purchasers or purveyors of such

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