The battle of the milks – First Choice versus Fresh Choice – was debated before the Gauteng High Court (Pretoria), with the owner of First Choice asking that its competitor be interdicted from using its Fresh Choice logo, as it claimed it is similar to its trademark.

A Cape Argus report says Woodlands Dairy in the Eastern Cape – which sells its products under the name and brand First Choice – turned to the court to obtain an order against its competitor Sansom Farming CC under its registered trade mark Fresh Choice.

Woodlands’ case was that it has statutory and common law trademark rights in the First Choice trademark as well as the domain name freshchoice.co.za as it is well-known and has acquired a secondary meaning as a mark of origin of its dairy products.

It contended that the respondent’s mark was confusingly similar to its own, causing deception or confusion among notional consumers.

It submitted that Sansom would be likely to take unfair advantage of its reputation and would enjoy a commercial benefit. But Judge Evette Dippenaar said she was not persuaded that Woodland had met the necessary threshold.

She said even if the disclaimed features are taken into account, the differences between the marks by far outweigh their similarities.

‘Considering the respective get-ups and the respective marks as a whole from the perspective of the average consumer likely to purchase the parties’ respective dairy products, there is no likelihood that a substantial portion of those consumers are likely to be confused or deceived into believing that the respondent’s products emanate from the applicant.’

The judge added that she was not persuaded that the applicant had established that the respondent has attempted to ride on its coattails regarding reputation and goodwill.

She subsequently turned down the application.

Full Cape Argus report

Judgment