The well-known RocoMamas restaurant chain has taken Rack 'n Grill, a small food truck business in Cape Town, to task about the infringement of its registered trade mark SMASHBURGER. Rack 'n Grill, in their menu, has a burger called the "Smash Burger". RocoMamas recently sent a letter to the owner of Rack 'n Grill, demanding that it removes the "Smash Burger" name from their menu and all other advertising material within 48 hours. In the press Rack 'n Grill said that it did not understand the demand, as RocoMamas' registration certificate revealed that the registered mark was spelt as one word, while Rack 'n Grill was using two words. The "burger" portion of the mark was disclaimed, meaning that RocoMamas cannot claim exclusive rights in the word burger – which makes sense.
Unfortunately for Rack 'n Grill, its use is still is a problem. Here's why...
The Trade Marks Act states that use of a confusingly similar mark for the same or similar goods, without the permission of the brand owner, may cause confusion amongst the public and will be an infringement. The fact that the registered mark is one word and the version used by Rack 'n Grill on its menu was spelt as two words, makes no difference.
Despite its registered mark, the dispute was apparently amicably resolved. Sometimes it seems you can have your burger and eat it!
Written by: Mkhuseli Methula – Candidate Attorney
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