food

SCA turns down Chicken Licken’s application in a battle for ‘soul’

Cape Town – In a bruising battle of the ‘soul’, the Supreme Court of Appeal (SCA) has clipped Chicken Licken’s wings as it attempted to prevent Greek street food outlet, Soul Souvlaki, from using what it claimed was its trademark.

Chicken Licken’s appeal to stop Soul Souvlaki from using the word “soul” was dismissed with costs.

The appellant, Golden Fried Chicken (Pty) Ltd, which trades as Chicken Licken through a number of food outlets, has registered the words “soul” and “soul food”, according to court papers.

Soul Souvlaki, which has several stores in Johannesburg, has been using its name since 2012.

Chicken Licken has claimed a trademark on “soul” since 1994, and registered “soul” in 2001.

It claimed Soul Souvlaki was “infringing its trademark” and approached the high court in Gauteng to interdict them from doing so.

It argued that the use of the word “soul” by Soul Souvlaki was likely to deceive or cause confusion among customer.

In its defence, Soul Souvlaki argued that there were some 200 registered companies containing the word “soul” in their names, as well as 300 registered companies that have names beginning with the word “soul”.

It’s not the first time Chicken Licken has turned to court over this issue. The Western Cape High Court earlier this year turned down Chicken Licken’s application involving alleged trademark infringements in relation to the word

“soul” against a Plettenberg Bay restaurant formerly trading as “East Coast Soul Kitchen”.

The case came as the company has already made efforts to remedy the situation by changing its name to “Sol Kitchen”. The case came about in July 2021 when Chicken Licken’s attorney contended that by trading as “East Coast Soul Kitchen”, the restaurant had infringed certain Chicken Licken trademarks.

In the case before the SCA, the court said “soul” and “Soul Souvlaki” were not the same thing, as only one aspect of the two marks was identical – the word “soul”.

Judge Trevor Gorven found that, even though this element formed part of Chicken Licken’s trademark, the word “Souvlaki” was not common to them.

“The question before us is whether notional customers would associate restaurant services called ‘Soul Souvlaki’ with those of the appellant if the latter was trading in the same market and selling Greek cuisine under the name ‘soul’.

“Put differently, in that scenario, would the use of the mark ‘Soul Souvlaki’ be likely to lead to deception or confusion in the minds of a substantial number of customers?

“In this matter, the word ‘Souvlaki’ is at least as significant as the word ‘soul’.

“It strikes me, if anything, as the more dominant of the two. It certainly cannot be ignored. When the marks are compared side by side, the word ‘Souvlaki’ clearly distinguishes the respondents’ mark from ‘Soul’. It is unlikely that the notional restaurant customer would confuse it with a restaurant called ‘Soul’. Therefore, the direct comparison between the marks shows no likelihood of deception or confusion,“ he said.

“In my estimation, the likelihood of deception or confusion is far more remote than in the case of ‘Pepsi Twist’ as compared to ‘Lemon Twist’ or ‘Diet Twist’. There, all the marks comprised two words. All were prefixes. All contained the same number of syllables. Here we have the single word ‘Soul’. ‘Soul Souvlaki’ is far more likely to operate as did ‘Power House’ in relation to ‘Power’ and ‘Lucky Fish’ in relation to ‘Lucky Star’.”

Cape Times

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