Golden Fried Chicken (Pty) Ltd v Vlachos and Another

The appellant, Golden Fried Chicken (Pty) Ltd, which trades as ‘Chicken Licken’, is the proprietor of registered trade marks including the word mark ‘Soul’ in several classes under the Trade Marks Act 194 of 1993, with only the class 43 service mark (restaurant and food services) remaining relevant on appeal. The respondents trade Greek food through two restaurants under the name ‘Soul Souvlaki’ and applied to register that mark in classes 35 and 43. The appellant alleged that the respondents’ use of ‘Soul Souvlaki’ infringed its registered ‘Soul’ mark and sought an interdict under s 34(1)(a) of the Act. The respondents opposed the application and counter-applied for removal of the appellant’s marks as non-distinctive. The High Court dismissed both the infringement application and the counter-application. The appellant appealed to the Supreme Court of Appeal, limiting its claim to infringement of the class 43 ‘Soul’ mark.

The appeal was dismissed with costs, and the High Court’s dismissal of the infringement application was confirmed.

This case reaffirms and clarifies the application of the deception or confusion test under s 34(1)(a) of the Trade Marks Act in South African law. It emphasises strict interpretation of mark identity, the importance of assessing marks as a whole, and the role of dominant features in composite marks. The judgment provides guidance on how common words, even when registered, may be sufficiently distinguished by additional elements, particularly in the context of service marks in the restaurant and food sector.