14 may be another reason why the patient insists on a particular brand and asks his physician to put it on the prescription. Moreover, quality control may not be identical from one laboratory to another or the quality itself may not be perceived as such.’ Elsewhere the court said:16 ‘Not including [the patient] in the clientele covered by the passing-off action in my opinion divests him of part of his rights as an individual. He is deprived of the means of protecting himself as an informed person.’ [28] The Canadian legislation gives both the pharmacist and the patient a choice in relation to dispensing or obtaining a generic drug. Section 22F, on the other hand, allows the patient on being informed of the availability of a generic medicine as a substitute for the branded medicine to choose between the two. The patient is in fact required to stipulate whether he or she would prefer a generic over a more expensive other generic or the innovator drug. The court below accepted the evidence of Dr S A Gregory, both a medical practitioner and a qualified patent attorney, who also happens to have been Cipla’s attorney’s Pretoria correspondent, that s 22F has made medical practitioners and pharmacists even more acutely aware of the different brand names of pharmaceutical products so that the likelihood of confusion had become even more remote. This approach disregards the importance of the choice given to the patient by s 22F. The patient is not a passive bystander but plays an active role in the dispensing of his or her medication. [29] Despite the difference in wording between s 17(1) of the repealed Trade Marks Act 62 of 1963 and s 10(14) of the present Act, the words ‘likely to deceive or confuse’ are retained in the latter section and should be given the same meaning. In Cowbell AG v ICS Holdings Ltd17 Harms JA remarked: ‘Section 17(1) creates an absolute bar to registration provided the jurisdictional fact is present, namely that the use of both marks in relation to the goods or services in respect of which they are sought to be registered, and registered, would be likely to deceive or cause confusion. The decision involves a value judgment and 16 95 DLR (4th) 385 at 408c-d. Cowbell AG v ICS Holdings Ltd 2001 (3) SA 941 (SCA) para 10. See Bata Ltd v Face Fashions CC & another 2001 (1) SA 844 (SCA) paras 8 and 9. 17