Picture: SUNDAY TIMES
Picture: SUNDAY TIMES

THE Due-South craft-route shop in Franschhoek may continue doing business under its name after the North Gauteng High Court dismissed an appeal by the Foschini Group.

Foschini uses the Due South trade mark in its 21 Due South stores across South Africa. These stores trade in outdoor, camping and adventure clothing and equipment.

Foschini had appealed against the judgment and order of the deputy registrar of trademarks in 2010 that allowed Jan Frederick Coetzee to register several Due-South logo trademarks.

Mr Coetzee’s outlet in Franschhoek promotes indigenous South African arts and crafts by identifying the majority of craft projects and cultural tourism points in South Africa. His logo has an encircled star device that overlaps the first part of the word Due. It also has a hyphen between Due and South.

The court found that Foschini’s opposition to the trademarks registered by Mr Coetzee could not be sustained. Mr Coetzee’s Due-South published a series of travel guides and provincial maps detailing all crafters and other cultural tourism points in South Africa.

Foschini argued, for example, that Mr Coetzee’s meat, fish, farm-stall products and dried and cooked fruits were similar to its trademarks registered as cutlery under class 8 and cooking under class 11 of the Trade Marks Act. Foschini argued that all that was required under the act was to show there was "some similarity".

Judge Andre Louw said in his judgment he did not find any justification for reading the word "some" into the relevant section of the act. He referred to a previous case that stated the relevant factors to consider similarity.

These factors include the use of the goods, the users of the goods, the physical nature of the goods and the extent to which the goods or services are competitive.

The act provides for the registration of goods and services in a particular class or classes. There are 34 classes of goods and 11 classes of services.

Foschini has obtained registration in 14 classes. That means it has protection in relation to a third of all goods and services.

Judge Louw said it was telling that Foschini chose not to register in any of the classes of Mr Coetzee’s applications.

Mr Coetzee’s legal team argued that no consumer would confuse Cobra floor polish with Cobra taps or Cobra motor cars. They would also not confuse a Polo car with Polo clothing.

As none of Mr Coetzee’s goods were the same as or similar to those of Foschini, the question of the likelihood of deception or confusion did not arise, the court found. The appeal was dismissed with costs.