Feltex Holdings (Pty) Limited v Olymp Benzer GmbH and Co. KG (5918/2015) [2016] ZAGPPHC 651; 2016 BIP 215 (GP) (28 July 2016)

Feltex Holdings (Pty) Limited v Olymp Benzer GmbH and Co. KG (5918/2015) [2016] ZAGPPHC 651; 2016 BIP 215 (GP) (28 July 2016)

The court found that the Applicant's trade mark 'OLYMPIC' is not limited to sportswear but extends to all clothing, and has been used in South Africa for nearly a century. The Respondent's mark 'OLYMP' is sufficiently similar to 'OLYMPIC' that its registration for similar goods would likely deceive or cause...

Source-derived case information.

Citation
[2016] ZAGPPHC 651
Parties
Applicant: Feltex Holdings (Pty) Limited; Respondent: Olymp Bezner GmbH & Co. KG
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 July 2016
Case Number
5918/2015
Procedural Posture
Review Application / Referral From Registrar of Trade Marks Under Section 59 of the Trade Marks Act
Outcome
Application for registration of the Respondent's trade mark refused; costs awarded to the Applicant.
Judges
S L Margadie
Legal Topics
Trade Mark Opposition, Likelihood of Confusion, Onus of Proof, Trade Mark Registration, Comparison of Marks
Intellectual Property Trade Mark Opposition Likelihood of Confusion Onus of Proof Trade Mark Registration Comparison of Marks

Source-derived case record

Summary, issues, holding and outcome

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Parties

Feltex Holdings (Pty) Limited

Applicant

Olymp Bezner GmbH & Co. KG

Respondent

Procedural Posture

Review Application / Referral From Registrar of Trade Marks Under Section 59 of the Trade Marks Act

Legal Issues

  1. 1 Whether the Respondent's trade mark 'OLYMP' is identical or similar to the Applicant's registered trade mark 'OLYMPIC'.
  2. 2 Whether the goods for which the Respondent seeks registration are the same or similar to those covered by the Applicant's trade mark.
  3. 3 Whether the registration of the Respondent's trade mark is likely to deceive or cause confusion among consumers.

Ratio Decidendi

The court found that the Applicant's trade mark 'OLYMPIC' is not limited to sportswear but extends to all clothing, and has been used in South Africa for nearly a century. The Respondent's mark 'OLYMP' is sufficiently similar to 'OLYMPIC' that its registration for similar goods would likely deceive or cause confusion among consumers. The Respondent failed to discharge the onus of proving that confusion or deception would not occur, especially given the broad scope of the Applicant's registration. The court rejected the Respondent's arguments regarding market segmentation and dilution, holding that the comparison must be made on the basis of notional use of the marks. The application for...

Court Disposition

Application for registration of the Respondent's trade mark refused; costs awarded to the Applicant.

Orders

  • The Respondent's trade mark application 2009/14586 in class 25 is refused.
  • The Registrar of Trade Marks is ordered not to register the Respondent's trade mark.