Is Marula A Trade Mark Or A Fruit?

Amarula liqueur is said to be the second most popular cream liqueur in the world, after Baileys Irish Cream, and understandably, there is a temptation to adopt a trade mark that would reap some of the benefits of the reputation established by the proprietor. This is exactly what occurred in a decision of the Western Cape High Court in Southern Liqueur Company Limited v SLD Liquor Manufacturers Limited. The Southern Liqueur Company (the applicant) had a trade mark registration for Amarula. SLD (the respondent) used the trade mark "Black Horse Marula Cream Liqueur", with the word "marula" very prominently.  The respondent attacked the Amarula registration, amongst others, on the basis of it being descriptive. In order to prevent the expungement of its mark, the applicant agreed to a so-called admission to be entered against its mark, in the format of "Registration of this mark shall not debar others from the bona fide descriptive use in the ordinary course of trade of