The ‘Crax’ of a trademark dispute between AVI and Cape Cookies

National Brands, a subsidiary of JSE-listed consumer goods group AVI, will lock horns in the Supreme Court of Appeal (SCA) in May with Cape Cookies in a trademark dispute.

National Brands hopes the SCA overturns the decision of the high court that ruled it failed to advance sufficient grounds to bar Cape Cookies from registering its Snackcrax trademark.

The class at issue covers flour and preparations made from cereals, bread, pastry and confectionery, among other things.

National Brands argues that it has established a protectable reputation in its Salticrax, Vitasnack and Snacktime trademarks. It says Cape Cookies’ Snackcrax trademark is confusingly similar to these trademarks.

National Brands will argue before five justices at the SCA that the inclusion of “Crax” in the trademark application renders it confusingly or deceptively similar to its registered Salticrax trademark.

National Brands has held the Salticrax trademark regarding “salt flavoured biscuits” since August 1 1951.

The company also contends that as its Salticrax trademark has a significant reputation and accompanying goodwill in the SA market it has earned exclusivity in the “Crax” portion of the mark in SA regarding savoury biscuits.

National Brands contends that Cape Cookies’ Snackcrax trademark amalgamates the “Snack” element of its Snacktime trademark and the “Crax” element of its Salticrax trademark, and that this was “deliberately done to imitate the product so as to obtain an unfair advantage in the market place by deceiving or confusing consumers”.

National Brands also argues that Cape Cookies’ intention of using the Snackcrax mark only regarding savoury biscuits, as opposed to all of the goods covered by the trademark application to the entire category of goods listed in the class, means that Cape Cookies adopted the Snackcrax mark to take advantage of the reputation in National Brands’ trademarks and unfairly compete with it.

Most blatant

In its defence, Cape Cookies contends that National Brands’ trade reputation resides in its Bakers trademark, which identifies the origin of the goods and that their registered marks at issue (Salticrax and Snackcrax) are product names or mere descriptors and not true trademarks worthy of protection. 

In an attempt to prove that the Cape Cookies brands are confusing to consumers, National Brands pointed to an article by Wendy Knowler, a consumer journalist, who claimed that “as imitations go, Cape Cookies Snackcrax version of Baker’s Salticrax is among the most blatant I’ve ever seen”.

The h igh Court in Pretoria in December 2021 rejected the arguments advanced by National Brands. “In my view, National Brands has failed to establish that the prospective trade ‘is inherently deceptive or the use of which would be likely to deceive or cause confusion’. I am not persuaded that the common Crax element is sufficient to deceive or confuse the hypothetical reasonable consumer as to the origin of the savoury biscuit considered for purchase,” the judgment reads.

“Nor do I find that the packaging, visual or aural characteristics of the two marks or their presentation are likely to deceive or confuse. The prominence and differences in colour, design and size between the Bakers logo and that of Cape Cookies also safeguard against confusion between the Salticrax and Snackcrax marks when the products are viewed in their entirety,” it reads.

It is this judgment that National Brands hopes the SCA will overturn.

AVI is home to an extensive portfolio of more than 53 brands; 33 owned brands and more than 20 international brands under licence.

The Biscuit and Snack sector of AVI is also referred to as Snackworks.

Cape Cookies, which employs more than 350 people, was established in 1992. Its products are sold in all five major retail chains in SA as well as in 23 other counties, including China, New Zealand, the Philippines, Malaysia, Costa Rica, and Saudi Arabia.

Meanwhile, the SCA is expected to soon rule on the trademark dispute between Colgate-Palmolive SA and Bliss Brands. Colgate has accused Bliss Brands of deploying a Stalingrad legal strategy to continue profiting from packaging similar to that of its soap brand Protex, despite the Advertising Regulatory Board having ruled that it should stop doing so.

In a case that is likely to determine the jurisdiction that the Advertising Regulatory Board has over non-members, Bliss Brands asked the Constitutional Court to set aside the finding of the SCA that the advertising board serves a vital public purpose by maintaining ethical standards in the advertising industry.

khumalok@businesslive.co.za