When Is A Descriptive Mark Not A Descriptive Mark?

This was the issue before the Supreme Court of Appeal in the matter between Dinnermates (Tvl) CC and Piquante Brands International & another 401/17) [2018] ZASCA 43 (28 March 2018).

The matter was an appeal against the decision of the Full Court upholding an opposition in terms of section 10(14) of the Trade Marks Act 194 of 1993 ("the Act") to the registration of the Appellant's trade mark applications for the mark PEPPAMATES in the face of the Respondent's PEPPADEW trade mark registrations.

Section 10(14) deals with marks which are identical or similar to an existing registered trade mark, filed in respect of the same or similar goods/services, and which are likely to deceive or cause confusion in the marketplace.