National Brands Limited v Cape Cookies CC and Another

Cape Cookies CC applied to register the trade mark SNACKCRAX in class 30 for, inter alia, savoury biscuits. National Brands Limited opposed the registration based on several grounds under section 10 of the Trade Marks Act 194 of 1993, relying primarily on section 10(17). National Brands is the long-standing proprietor of well-known registered trade marks including SALTICRAX, SNACKTIME and VITASNACK, used extensively for savoury biscuits and related goods. SALTICRAX, registered since 1951, enjoys a substantial reputation and market share in South Africa and internationally. SNACKCRAX biscuits were marketed by Cape Cookies in direct competition with SALTICRAX. The High Court dismissed the opposition and ordered registration of SNACKCRAX, prompting National Brands to appeal to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order upholding the opposition to trade mark application no. 2013/06837 and refusing registration of SNACKCRAX. Cape Cookies CC was ordered to pay the costs of the opposition proceedings, including costs of two counsel.

This judgment is the leading South African authority on the interpretation of section 10(17) of the Trade Marks Act. It clarifies that the anti-dilution protection afforded to well-known trade marks applies even where the competing marks are used on similar goods, and that proof of actual detriment is not required. The decision strengthens the protection of famous marks at the registration stage and rejects restrictive interpretations adopted in earlier High Court decisions.