Grupo Bimbo S.A.B. de C.V. v Takis Biltong (Pty) Ltd

Grupo Bimbo S.A.B. de C.V., a Mexican company trading internationally, was the proprietor of South African trade mark registration no. 2012/14977 TAKIS FUEGO (device) in class 30 for snack food products such as chips and extruded corn products. Takis Biltong (Pty) Ltd, a South African company, was the registered proprietor of earlier TAKIS LOGO trade marks registered in 2007 in class 29 for meat and snack meat products, including biltong. Takis Biltong applied to the Gauteng Division of the High Court to expunge Grupo Bimbo’s TAKIS FUEGO mark under s 24 of the Trade Marks Act 194 of 1993, relying on ss 10(12), 10(14), 10(16) and 10(17). The court of first instance dismissed the application, but on appeal the full court (majority) cancelled the mark, finding a likelihood of deception or confusion and unfair advantage. Grupo Bimbo’s subsequent application for special leave to appeal to the Supreme Court of Appeal was dismissed. The present proceedings concerned a reconsideration of that dismissal under s 17(2)(f) of the Superior Courts Act 10 of 2013.

The application for reconsideration of the order dismissing special leave to appeal was dismissed with costs.

The judgment reinforces South African trade mark principles relating to deceptive or confusing similarity, especially the dominance of invented words and the limited relevance of Nice classification distinctions. It confirms the interdependence between similarity of marks and similarity of goods, affirms the protection afforded to well-known marks under s 10(17), and clarifies that a dissenting judgment alone does not constitute special circumstances for special leave to appeal in the Supreme Court of Appeal.