Hollywood Curl (Pty) Ltd. and Another v Twins Products (Pty) Ltd. (282/87) [1988] ZASCA 133; [1989] 1 All SA 377 (A) (30 September 1988)

Hollywood Curl (Pty) Ltd. and Another v Twins Products (Pty) Ltd. (282/87) [1988] ZASCA 133; [1989] 1 All SA 377 (A) (30 September 1988)

The court held that the appellant's 'Hollywood Curl' mark did not infringe the respondent's registered trade marks, as the only common element was the word 'Hollywood', which was disclaimed in one registration and insufficiently similar in the other. The series principle was found inapplicable to infringement...

Source-derived case information.

Citation
[1988] ZASCA 133
Parties
Appellant: Hollywood Curl (Pty) Limited; Appellant: The International Hollywood Curl Hairdressers Suppliers and Training Centre; Respondent: Twins Products (Pty) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 September 1988
Case Number
282/87
Procedural Posture
Civil Appeal / Appeal From Judgment and Order of the Transvaal Provincial Division
Outcome
Appeal partially allowed: the interdict restraining trade mark infringement is set aside; interdicts restraining passing off are confirmed.
Judges
Corbett, Smalberger, Milne, Kumleben, Nicholas
Legal Topics
Trade Mark Infringement, Passing Off, Distinctiveness, Series Principle, Goodwill, Interdict Relief
Intellectual Property Commercial and Corporate Trade Mark Infringement Passing Off Distinctiveness Series Principle Goodwill Interdict Relief

Source-derived case record

Summary, issues, holding and outcome

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Parties

Hollywood Curl (Pty) Limited

Appellant

The International Hollywood Curl Hairdressers Suppliers and Training Centre

Appellant

Twins Products (Pty) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment and Order of the Transvaal Provincial Division

Legal Issues

  1. 1 Whether the appellant's use of the mark 'Hollywood Curl' infringes the respondent's registered trade marks under the Trade Marks Act.
  2. 2 Whether the appellant's use of 'Hollywood Curl' constitutes passing off of goods and business as those of the respondent.
  3. 3 Whether the respondent has established a reputation and goodwill in the 'Hollywood' marks sufficient to sustain a passing off claim.

Ratio Decidendi

The court held that the appellant's 'Hollywood Curl' mark did not infringe the respondent's registered trade marks, as the only common element was the word 'Hollywood', which was disclaimed in one registration and insufficiently similar in the other. The series principle was found inapplicable to infringement actions involving only two diverse registered marks. However, the court found that the respondent had established a substantial reputation and goodwill in the 'Hollywood' marks through extensive use and advertising in the cosmetics market. The appellant's use of 'Hollywood Curl' was likely to cause confusion among consumers, leading them to believe the goods emanated from the...

Court Disposition

Appeal partially allowed: the interdict restraining trade mark infringement is set aside; interdicts restraining passing off are confirmed.

Orders

  • Paragraph (a) of the order of the court a quo is deleted.
  • The appellant is ordered to pay one-half of the respondent's costs of appeal.