Both trade marks were registered on 8 May 2007 in class 29 in respect of “Meat, fish, poultry, and game, preserved meats, meat extracts, sausages”. 

The series of these matters started in 2018 when Takis Biltong instituted proceedings in terms of section 24 of the Trade Marks Act 194 of 1993 (“the Act”) against Grupo Bimbo out of the Gauteng Division of the High Court, Pretoria (“court a quo”) for the cancellation of Grupo Bimbo’s trade mark from the trade mark register on the basis of that Grupo Bimbo’s TAKIS FUEGO trade mark was identical and/or similar to its TAKIS BILTONG trade marks, and that it is used on the same and/or similar goods, and it is likely to deceive and cause confusion. The court a quo dismissed the application on the basis that the parties’ trade marks and the related goods were dissimilar and the likeliness of confusion was minimal. 

Takis Biltong proceeded to file an appeal against the decision out of the Gauteng Division of the High Court, Pretoria (“appeal court”). On 10 December 2021, appeal court upheld the appeal and set aside the decision of the court a quo and ordered the cancelation of the TAKIS FUEGO trade mark on the basis that this trade mark was identical and/or similar to TAKIS BILTONG trade marks, it is used on the same and/or similar goods, and it is likely to deceive and cause confusion. 

Grupo Bimbo then approached the Supreme Court of Appeal of South Africa (“SCA”) and requested the SCA to reconsider the decision of the appeal court. The matter was heard on 8 November 2023 and on 14 December 2023 the SCA handed down the judgment of the request to reconsider the decision of the appeal and so far the final judgment in the Takis Biltong v Grupo Bimbo matters. The SCA upheld the appeal court’s decision and dismissed Grupo Bimbo’s application for a reconsideration of the appeal court’s decision.   

Ultimately, the SCA concluded and reiterated that Takis Biltong had satisfied the requirement in terms of sections 10(12), 10(14), and 10(17) of the Act and that Grupo Bimbo’s TAKIS FUEGO trade mark is likely to take unfair advantage of Takis Biltong’s TAKIS BILTONG trade marks, and that Grupo Bimbo’s TAKIS FUEGO constitutes wrongful entry on the register and as such fell to be cancelled from the trade mark register.  

The judgment reinforces the rights which are bestowed on the proprietor of a registered trade mark and provides such proprietor with certainty when it comes to enforcing their trade mark rights. A proprietor of a registered trade mark which is being infringed by another registered trade mark can thus successfully apply to court for the cancellation of the infringing trade mark to be removed from the register.