Question

Consider the following scenario and answer the questions that follow: "Tadbury" is a South African manufacturer and distributor of various popular confectionery products, including chocolates. Tadbury has produced many industry firsts since the company started trading in 1987. Recently, Tadbury's creative team came up with a new kind of chocolate, made from 100% natural and organic ingredients. Tadbury's legal team immediately instructs the marketing department to come up with a new name for the new product, because, they are advised by the legal team that the product needs to be trade marked as soon as possible. The marketing team comes up with a new packaging design and a few ideas for the name and logo that will be used for the new chocolate. 2.1 2.2 Describe what a trade mark is in terms of Section 2 of the Trade Marks Act 194 of 1993 ("the Act"). 2.2.1 the name "SWEET AND SMOOTH". 5 In each of the following instances, indicate whether Tadbury would be successful in obtaining a registered trade mark for the indicated mark or item. Refer to legislation in your answers. 2.2.2 the unique box (or packaging) in which the new chocolate will be sold. (4 marks) HIPLW130-1-July-December 2023-FA1-LH-V.4-28042023 (9 marks) (3 marks)​

Answer 1

In terms of Section 2 of the Trade Marks Act 194 of 1993, a trade mark refers to any sign capable of being represented graphically that is used or proposed to be used by a person to distinguish their goods or services from those of others. A trade mark can include names, logos, packaging, sounds, shapes, or any combination thereof.

Now, let's consider whether Tadbury would be successful in obtaining a registered trade mark for the indicated marks or items:

2.2.1 "SWEET AND SMOOTH" (the name):

To determine if Tadbury can obtain a registered trade mark for the name "SWEET AND SMOOTH," it would need to meet the requirements outlined in the Trade Marks Act. The Act states that a trade mark must be capable of distinguishing the goods or services of one undertaking from those of others. If "SWEET AND SMOOTH" is unique and not descriptive or generic in relation to chocolate products, Tadbury may have a good chance of obtaining a registered trade mark for this name. However, it would need to comply with the specific registration process and requirements set out in the Act.

2.2.2 The unique box (or packaging) in which the new chocolate will be sold:

In order for the unique box or packaging to be eligible for trade mark registration, it must also fulfill the requirements of the Trade Marks Act. The Act states that a trade mark should be capable of distinguishing the goods or services of one undertaking from those of others. If Tadbury's unique box design is distinctive and not common in the industry, it may have a strong case for obtaining a registered trade mark for the packaging. However, it is important to note that the packaging should not be functional in nature, as functional aspects cannot be protected by trade marks.

In summary, Tadbury may have a good chance of obtaining a registered trade mark for the name "SWEET AND SMOOTH" if it is unique and not descriptive or generic. Similarly, the unique box or packaging design may be eligible for trade mark registration if it is distinctive and not functional. However, the final decision will depend on the specific requirements and processes outlined in the Trade Marks Act.