Cowbell AG v ICS Holdings Limited

In 1988 the appellant, Cowbell AG, applied for registration of the trade mark "Cowbell" with a cow device in class 29 (dairy products) under the Trade Marks Act 62 of 1963. The respondent, ICS Holdings Limited, opposed the application relying mainly on section 17(1) of the Act, citing its earlier registrations including "Dairybelle", "Dairy Belle" with a cow device, and "Jerseybel" with a cow device. The Deputy Registrar dismissed the opposition and allowed registration. On appeal, the Full Court of the Transvaal Provincial Division upheld the opposition and refused registration. Cowbell AG then appealed to the Supreme Court of Appeal. Preliminary issues arose concerning whether leave to appeal was required and whether condonation should be granted for the late noting of the appeal.

The appeal was upheld with costs, including the costs of two counsel. The order of the Full Court was set aside and replaced with an order dismissing the respondent’s appeal with costs. Condonation for the late noting of the appeal was granted, with no order as to costs in respect of the condonation application.

The case is significant for clarifying the application of section 17(1) of the Trade Marks Act 62 of 1963, particularly the assessment of likelihood of confusion and the limits of conceptual similarity in trade mark comparisons. It confirms that ordinary descriptive or thematic concepts cannot be monopolised through trade mark registration and aligns South African law with European and domestic authority on global appreciation of confusion. The judgment also provides authoritative guidance on appeal procedures applicable to trade mark matters commenced under repealed legislation.