15 “[t]he ultimate test is, after all, as I have already indicated, whether on a comparison of the two marks it can properly be said that there is a reasonable likelihood of confusion if both are to be used together in a normal and fair manner, in the ordinary course of business”. (SmithKline Beecham Consumer Brands (Pty) Ltd (formerly known as Beecham South Africa (Pty) Ltd) v Unilever plc [1995 (2) SA 903 (A)] at 912H). “Likelihood” refers to a reasonable probability (ibid at 910B), although the adjective “reasonable” is perhaps surplusage. In considering whether the use of the respondent’s mark would be likely to deceive or cause confusion, regard must be had to the essential function of a trade mark, namely to indicate the origin of the goods in connection with which it is used . . . . Registered trade marks do not create monopolies in relation to concepts or ideas.’ Harms JA approved of the statement in Sabel BV v Puma AG, Rudolf Dassler Sport18 where it was said that the likelihood of confusion must ‘be appreciated globally’, and that the – ‘global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components.’ [30] The question whether ZEMAX is ‘likely to deceive or cause confusion’ as s 10(14) requires must be answered with reference, not to the specialised market of prescription medication only, but with reference to the patient as well. The patient is the ultimate consumer whose wishes may not be disregarded and who has a right to participate in any decision concerning his health and treatment. It may well be that there is little likelihood of the medical practitioner or pharmacist being deceived or confused but the enquiry does not end there. [31] Both ZEMAX and ZETOMAX are meaningless words and there can be no confusion based on meaning or concept or idea.19 But the two words are similar, confusingly so.20 ZEMAX consists of two syllables and five letters. ZETOMAX comprises three syllables and seven letters. The difference between the two marks arises out of the middle syllable TO in ZETOMAX which extends the word and 18 Cowbell AG v ICS Holdings Ltd at 948B-D referring to Sabel BV v Puma AG, Rudolf Dassler Sport [1998] RPC 199 (ECJ) at 224. 19 Laboratoire Lachartre SA v Armour-Dial Incorporated 1976 (2) SA 744 (T) at 747A-C. 20 The approach to determine whether use of a mark is likely to deceive or cause confusion in infringement cases (eg Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 640 E ff) is with the required adaptation also followed in expungement proceedings (SmithKline Beecham Consumer Brands (Pty) Ltd (formerly known as Beecham South Africa (Pty) Ltd ) v Unilever plc 1995 (2) SA 903 (A) at 910GH).