SOUTH AFRICA Trends and Developments Contributed by: Daniel Pekar, KISCH IP
2.3 Recommendations Composite mark protection should not be treated as conferring rights in individual words or elements in isolation. Practitioners should prepare applications for individual elements where protection is sought for such individual elements rather than filing for the composite version intending to minimise the costs or to mitigate rejection of the registry. When reviewing the availability of a trade mark appli - cation, or in assessing whether to oppose a third-par - ty application, it will be important to closely review the visual, aural and conceptual differences of any conflicting third-party marks. This assessment has been shown to carry a lot of weight, especially in com - paring word marks against composite marks. What seems to be of a secondary importance is whether the consumer is more or less likely to be careful in their purchasing decisions (such as for low-cost goods or services). The extent of similarity between goods or services is a key consideration, but clearly, the degree of similarity between goods or services is not a “silver bullet” where the marks are arguably dissimilar visu - ally, aurally and conceptually. 3. Chrystal Spring Consumer Division Ltd v Salt of the Earth Products (Pty) Ltd Link: https://www.saflii.org/za/cases/ZAW - CHC/2025/465.html Western Cape High Court, Cape Town Judgment: 15 October 2025 3.1 Background Chrystal Spring Consumer Division Ltd (the applicant) (“Chrystal”) is proprietor of the registered trade mark “SALT OF THE EARTH” in class 3 in respect of deo - dorants and related products. Salt of the Earth Products (Pty) Ltd (the respondent) (“Salt”) used the same mark and claimed that it had been doing so since 2008 in connection with Himala - yan salt products and, later, roll-on deodorants featur - ing certain stylised elements. Chrystal instituted a trade mark infringement applica - tion in terms of Section 34 (1)(a) of the Trade Marks Act
relying on its trade mark registration and sought an interdict to restrain the respondent from using “SALT OF THE EARTH” for deodorants. 3.2 Discussion The first issue was whether the applicants were required to prove a likelihood of deception or confu - sion where the marks were identical. The court applied the Supreme Court of Appeal decision in Century City Apartments , and held that the respondent’s mark was identical to the registered mark, and so, proof of con - fusion would not be necessary. The respondent was required to establish in terms of Section 36 of the Trade Marks Act proof of continuous and bona fide use of the “SALT OF THE EARTH” trade mark on deodorants prior to the applicants’ use or registration. The evidence was, however, not sufficient as the invoices in evidence only covered a two-month period in 2015, the bank records did not specifically link to deodorant sales, and the confirmatory affida - vits did not make specific reference to deodorant- related use. Further aggravating factors that the court addressed were that the respondent did not respond to demand letters, and that the respondent sought a counter-application for partial expungement of the applicant’s mark, which the court found was aimed at frustrating the application, as a misuse of the courts. The court granted the interdict restraining the respondent from using the “SALT OF THE EARTH” mark in respect of deodorants, and the court required that the respondent attend to the removal or disposal of infringing materials. The counter-application was dismissed. 3.3 Recommendation The first lesson to draw from this decision is that the respondent alleging honest concurrent use must pre - sent clear, product-specific evidence of continuous use of the mark, including sales data, marketing and distribution records tied to the relevant goods. There - fore, it is crucial to keep all relevant records of use of a mark stretching back to its first use, and over specific goods, should it be necessary to show honest concurrent use.
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