"., . the likelihood of association scope." is not an alternative to that of likelihood of confusion, but serves to define its Page 248 of [2001] 4 All SA 242 (A) Also ",,. . the perception of marks in the mind of the average consumer of the type of goods or services plays a decisive role in the global appreciation of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details." Further ",. . the criterion of ‘likelihood of contained in Article 4(1)(b) of the might make between two marks ground for concluding that there is The last statement was, however, confusion which includes the likelihood of association with the earlier mark’ Directive is to be interpreted as meaning that the mere association the public as a result of their analogous semantic content is not in itself a sufficient a likelihood of confusion within the meaning of that provision." preceded by a qualification: "It is therefore not impossible that the conceptual similarity resulting from the fact that two marks use images with analogous semantic content may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public." [15] Likewise, section 17(1) is concerned with a likelihood of confusion or deception and unless the analogous semantic content can reasonably give rise thereto, it is irrelevant. The danger of confusion or deception must be real ("Bali" Trade Mark [1969] RPC 472 (HL) at 496 line 45-497 line 2). That the approach of the court 2 quo is untenable can be illustrated with reference to the a fortiori case referred to by it, namely that because a Jersey may be a cow, Jerseybel and Cowbell have the same semantic content and are therefore confusingly similar. If this were correct, it would mean that the name of any breed of dairy animal in conjunction with -bel must run foul of the respondent's marks, including Ayreshirebel, Holsteinbel and Frieslandbel. There is in any event no such thing as a Jerseybel. As said in Bata (supra) at 850 paragraph 10 "Counsel for the appellant submitted that the common element in both marks, the word 'Power', was likely to lead to confusion despite the fact that it is used in combination with the word 'House' on the first respondent's clothing. If full effect is given to this argument it would result in the appellant having a virtual monopoly to use the word 'Power' on clothing. According to the evidence, however, there are numerous trade mark registrations in South Africa in respect View Parallel Citation of clothing which incorporate or include the word ‘Power’. It is an ordinary word in everyday use, as distinct from an invented or made-up word, and it cannot follow that confusion would probably arise if it is used in combination with another word." In short, the respondent cannot lay claim to the exclusive use of words having a dairy connotation or ending in "-belle" or "-bel" in relation to dairy products where these do not form a dominant part of its marks and have not any particularly distinctive character. That is why "Coca-Cola" and "Pepsi-Cola" have been able to exist side by side (cf The Coca-Cola Co of Canada Ld v Pepsi-Cola Co of Canada Ld [1942] RPC 127 (PC)). [16] In conclusion the respondent relied 139 the argument is explained: upon the so-called series argument. In LAWSA Reissue Vol 29 paragraph "Where an objector has used a series of marks, all containing a common element, and where the applicant's mark contains the same element, the registrar of Trade Marks may infer that the public, when they see the applicant's mark, Page 249 of [2001] 4 All SA 242 (A) will be likely, by reason of the common element, to think that it is a new mark added to the series. In opposition proceedings the 'series' objection is normally brought under section 16(1) of the Trade Marks Act of 1963 and it is necessary to establish actual use of each of the marks in the series." Since the respondent only has used the Dairybelle marks, 16(1). However, the author of the LAWSA title proceeds: the objection is not available to it under section "A 'series' objection does not appear to be available in opposition proceedings brought under section 17(1) or trade mark infringement proceedings. This is somewhat surprising and open to question. Use under section 16(1) is necessary to prove that distinctiveness of the marks is in issue, whereas such distinctiveness is deemed to exist for the purposes of section 17(1). Thus if there are either a series of factually or deemed distinctive marks, the opponents should be entitled to rely on such a series for the purposes of an opposition." [17] Respondent likewise argued that the limitation of the be available under section 17(1). If that were correct, proposition that was seriously queried by Corbett JA (Pty) Ltd (1) 1989 (1) SA 236 (A) at 247C-248H. Its (supra) at 228H-229A where, speaking on behalf of the objection to section 16(1) is incorrect and that it should it should similarly be available in infringement actions, a in Hollywood Curl (Pty) Ltd and another v Twins Products availability under section 17(1) was doubted in Upjohn Full Court, I had occasion to say the following: "In the case of an objection based upon section 17(1) or in the case of trade mark infringement the Court is, however, merely concerned with a comparison of the two marks placed side by side in the market place and the Court is not entitled to have regard to extraneous matters. The fact that the objector or plaintiff has a series of