The Travelwings Case, Confusing Similarity

In this article, we discuss a recent South African High Court judgment in the case ofWings Travel Management (Pty) Ltd v Satguru Travels (Pty) Ltd t/a Travelwings.

The facts

Wings Travel Management (Pty) Ltd ("Wings Travel") has South African registrations for the trade mark WINGS in classes 39 (travel services) and 43 (restaurant and accommodation services). Wings Travel claimed that the use by a rival company, Satguru Travels, of the trade mark TRAVELWINGS, constituted trade mark infringement in terms of Sections 34(1)(a) of the Trade Marks Act, as well as passing-off in terms of the common law. Both of these claims were dismissed.

What follows is a summary of the judge's findings - the main issue, of course, was whether there was a likelihood of confusion between the trade marks WINGS and TRAVELWINGS.

Likelihood of confusion

The judge who heard the case, Judge Dippenaar, started as follows:

'The primary question requiring determination is whether the respondent's TRAVELWINGS trading name and mark are identical to, or so closely resemble, the applicant's WINGS trade marks as to be likely to deceive or cause confusion.'

The judge spoke further about the fact that:

• The average consumer of travel services is sophisticated, literate and unlikely to be confused by the use of the TRAVELWINGS trade mark.
• The global impression created by the two trade marks WINGS and TRAVELWINGS was different in sound, concept and appearance.

The judge's observations

Judge Dippenaar was certainly diligent when it came to the issue of a likelihood of confusion. Here are some of the judge's more general observations:

• Origin: the essential function of a trade mark is to indicate commercial origin;
• Confusion: in order for there to be trade mark infringement, a substantial number of people must be confused;
• Dominant feature: in any alleged trade mark infringement case the main or dominant feature of the trade marks must be considered;
• Notional user: the notional user of the trade mark must always be considered;
• Everyman: a user of average intelligence, proper eyesight and ordinary caution must be considered;
• Holistic: When it comes to similarity, trade marks must be considered as a whole.

The judge's findings

Judge Dippenaar went on make the following findings:

• Global impression: The global impression created by the two trade marks WINGS and TRAVELWINGS was different in sound, concept and appearance.

These are the words of the judge:

'It is unlikely that a significant section of the public which uses the parties' services would consider WINGS as the same as TRAVELWINGS, given their distinguishing features. The words contribute nothing to identifying the source of the goods which it prompted. They are common to the trade and of non-distinctive character when viewed in isolation.'

• Generic words: The word WINGS is generic in the aviation industry.
• Aural and conceptual issues: The judge said that 'WINGS24 and TRAVELWINGS sound different... conceptually WINGS24 imports the notion of a 24-hour service. That is distinct from the notion of air travel invoked by TRAVELWINGS...seen holistically, there is no similarity which would cause deception or confusion.'
• Notional consumer: The judge said that in his view the trade mark 'TRAVELWINGS which includes a device sufficiently distinguishes respondent's services from those of the applicant...a notional consumer looking at the respective marks, even fleetingly, would be in a position to tell them apart... viewed together and side by side the respective marks and devices are not the same.

The case of trade mark infringement therefore failed.

In closing

Weshould mention that the judgment also makes reference to an issue involving another brand name, WINGSALEDI, with 'Naledi' being a word in South Africa's Sesotho language for 'star'. The judge made the following observation:

'Although the word WINGS is common to both, the words NALEDI and TRAVEL cannot be ignored... they are of equal importance as the word WINGS...the word NALEDI......introduces an indigenous South African element which is distinctive of the applicant's mark. The respondent's mark denoted the concept of air travel. The global impressions of the two marks are different.'

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