MORNINGSIDE surf lodge, Soul House rode out a wave of confrontation as Chicken Licken called out the guesthouse over the disuse of the word, ‘soul’ in their branding. Ron Wheeldon, attorney for Golden Fried Chicken, trading as Chicken Licken said he sent a letter to Soulhouse on February 11.
“The guest house apparently did not receive it so we followed up with a phone call and then sent a further letter on February 16. It was a letter which pointed out that our client owns the trademark SOUL in class 43 and called upon the guesthouse to agree to stop the use of the word,” said Wheeldon.
However, Soul House owner, Jacques Terblanche said he has no intention of changing the name of his establishment. This after his lawyers disputed the call to rebrand, saying Soul House is a self-catering lodge that does not serve food or run a restaurant. Instead, Terblanche has conceded to amend his website which mentions a restaurant at the premises. “I don’t think Chicken Licken will pursue this. Advocates have already offered their services free of charge to us,” he said.
Wheeldon said Chicken Licken had not yet made a decision on taking court action.
ALSO READ: Nothing set in stone as building dispute continues
“It is likely that, if the website had not represented that the guesthouse was operating a cafe under the trademark ‘soul’ or ‘Soul House,’ no demand would have been sent. We will monitor the website and see that the change is made. Technically, the use of ‘Soul House’ even on a guesthouse is infringement because it is a class 43 service and Chicken Licken’s ‘soul’ trade marks are well known,” he said.
The fast-food franchise has taken several similar cases to court. One such case in 2019, involved Oh My Soul Cafe, a vegan restaurant based in Durban North.
Judge Dhaya Pillay ruled in the cafe’s favour saying that if Chicken Licken sought to express “afrocentric heritage typified by success against adversity,” through the word ‘soul’ then the franchise should also adopt the spirit of ubuntu to “encourage rather than restrain the use of ‘soul’.”
“Success against adversity’ also means allowing small businesses to survive onslaughts by large, economically powerful corporates like the applicant,” said Pillay.
Commenting on this, Wheeldon said, “We do have two recent cases where despite what we and senior counsel regarded as clear cut infringement the courts have refused to grant our client its statutory remedies. The suggestion in particular by Judge Pillay that the principle of ubuntu means that trademark proprietors must allow third-party traders to use their registered rights is troubling.”
ALSO READ: Commercial crimes courts hit 92% conviction rate
For Terblanche, the branding request was done in “bad taste.”
“After coming out of lockdown, everyone is trying to rebuild their business. I think it’s bad taste from their side to go after every small business with the word ‘soul’ in its branding. We are small fries compared to a business with more than 200 outlets. I can’t understand why they go after every small business like this,” he said.
Wheeldon, however, said “The relative size of the players ought to be irrelevant. If it is correct that smaller traders are now permitted simply to use marks of others in which many millions of rand have been invested, then South African law has become unique and seriously out of step with the world at large.”
* Notice: Coronavirus reporting at Caxton Local Media aims to combat fake news
Dear reader, As your local news provider, we have the duty of keeping you factually informed on Covid-19 developments. As you may have noticed, mis- and disinformation (also known as “fake news”) is circulating online. Caxton Local Media is determined to filter through the masses of information doing the rounds and to separate truth from untruth in order to keep you adequately informed. Local newsrooms follow a strict pre-publication fact-checking protocol. A national task team has been established to assist in bringing you credible news reports on Covid-19. Readers with any comments or queries may contact National Group Editor Irma Green (irma@caxton.co.za) or Legal Adviser Helene Eloff (helene@caxton.co.za).
