Chicken Licken ‘soul’ trademark appeal dismissed

Cape Town – The Western Cape High Court has dismissed an application for leave to appeal by the owners of Chicken Licken, Golden Fried Chicken (Pty) Ltd with costs – who alleged trademark infringements in relation to the word “soul”, against a Plettenberg Bay restaurant formerly trading as “East Coast Soul Kitchen”.

The first case was ultimately dismissed after the Plettenberg Bay business already made efforts to remedy the situation by changing its name to “Sol Kitchen” along with all its menu items .

Following the outcome of the initial matter, the grounds for leave to appeal argued by Golden Fried Chicken was for a final interdict in respect of the marks “SOUL” and “SOUL KITCHEN”.

However Judge Patrick Gamble found: “In making that submission, counsel expressly referred to the aural similarity between “Soul” and “Sol”, and the likelihood for confusion in the mind of the average restaurant patron.

“When the name-change came to the attention of the applicant it did not seek to address the new description of the restaurant and the consequences thereof for purposes of an alleged trade mark infringement in a supplementary affidavit, as it would have been entitled to do.

“What the applicant seeks to do now is not merely to raise a new point of law on appeal: it seeks to advance a new case for infringement of certain of its registered marks based on evidence and issues which were not traversed before this Court, and, importantly, which the respondent was not afforded the opportunity to traverse. This it may not do.

“In the result, I conclude that the applicant has not shown that it has reasonable prospects of success on appeal, the application must fail.”

Cape Times

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