Plett chicken woes back in court

Update

PLETTENBERG BAY NEWS - The David and Goliath battle between restaurateurs in Plettenberg Bay over alleged trademark infringements briefly made it to court once again, but just like the Biblical event it was short-lived.

The conflict started in July 2021 when fast food restaurant Chicken Licken's attorney, Ronald Wheeldon, became aware that the Main Street bistro-style restaurant, formerly trading as East Coast Soul Kitchen, had allegedly infringed on some of his client's trademarks.

He wrote to owner George Frost informing him of the observation and that his client sought an undertaking that it would desist from using these trademarks.

The alleged trademarks infringements included the use of "soul kitchen" in the restaurant's name and some of their food offerings.

In correspondence between parties, Wheeldon said that the use of the name would likely cause confusion as members of the public "may be under the misapprehension that your goods and services are in some way connected to our client".

In response, Frost's lawyer Hardy Mills made it clear that his client's business was not a fast food restaurant, that it traded as East Coast Soul Kitchen and that all signage held this, that the restaurant was more than 100km from the nearest Chicken Licken outlet in the Western Cape and that the logo did not resemble that of Chicken Licken.

Therefore he believed that no reasonable person would be confused or misled by the name. Frost nevertheless decided to change the name of the restaurant to Sol Kitchen to avoid unnecessary and costly litigation.

In March this year Judge Patric Gamble found that there was no evidence before the court to sustain any contention that the Plett restaurant was infringing on trademarks. "When the restaurant strategically changed its name to 'Sol Kitchen', the battle was effectively over.

"The respondent is ordered to remove, within one week of this order, the remaining references to 'East Coast Soul Kitchen' from its webpage and/or Facebook page. Save as aforesaid, the application is dismissed," he found.

The battle was however not over. Chicken Licken approached the Western Cape High Court and applied for leave to appeal the judgment. this time over the similarity between "Sol" and "Soul".

Gamble found in his latest judgment on 11 August that the applicant sought to raise a new point of law in 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," Gamble said in his judgment.

He concluded that the applicant had not shown that it had reasonable prospects of success on appeal and therefore the application to appeal failed.

Sol Kitchen in Plettenberg Bay's Main Street. Photo: Ewald Stander