Protective Mining and Industrial Equipment Systems (Pty) Ltd. formerly Hampo Systems v Audiolens (Cape)(Pty) Ltd. (282/85) [1987] ZASCA 33; [1987] 2 All SA 173 (A) (30 March 1987)

Protective Mining and Industrial Equipment Systems (Pty) Ltd. formerly Hampo Systems v Audiolens (Cape)(Pty) Ltd. (282/85) [1987] ZASCA 33; [1987] 2 All SA 173 (A) (30 March 1987)

The Supreme Court of Appeal held that the respondent's sale of genuine Pentax cameras, manufactured and marked by Asahi, did not infringe Asahi's registered trade mark in South Africa. The Court found that trade mark infringement under section 44(1)(a) of the Trade Marks Act is limited to unauthorized use of the mark on goods not originating from the proprietor. The sale of genuine goods, properly marked by the trade mark proprietor, falls outside the scope of infringement. The Court further determined that the evidence did not establish any misrepresentation by the respondent that the appellant would honour guarantees for the goods sold, nor was there a likelihood of such...

Citation
[1987] ZASCA 33
Parties
Appellant: Protective Mining and Industrial Equipment Systems (Pty) Ltd. formerly Hampo Systems (Pty) Ltd; Respondent: Audiolens (Cape)(Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 March 1987
Case Number
282/85
Procedural Posture
Civil Appeal / Appeal From Cape Provincial Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Grosskopf, Corbett, Hoexter, Nestadt, Nicholas
Legal Topics
Trade Mark Infringement, Parallel Imports, Unlawful Competition, Passing Off, Exclusive Distribution, Genuine Goods Exception
Commercial and Corporate Intellectual Property Trade Mark Infringement Parallel Imports Unlawful Competition Passing Off Exclusive Distribution Genuine Goods Exception

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

Protective Mining and Industrial Equipment Systems (Pty) Ltd. formerly Hampo Systems (Pty) Ltd

Appellant

Audiolens (Cape)(Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Cape Provincial Division

Legal Issues

  1. 1 Whether the respondent's sale of genuine Pentax cameras imported from Hong Kong infringed Asahi's registered trade mark in South Africa.
  2. 2 Whether the respondent's conduct amounted to unlawful competition or passing-off against the appellant.
  3. 3 Whether the appellant was entitled to an interdict restraining the respondent from selling Pentax-branded goods not supplied by the appellant.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent's sale of genuine Pentax cameras, manufactured and marked by Asahi, did not infringe Asahi's registered trade mark in South Africa. The Court found that trade mark infringement under section 44(1)(a) of the Trade Marks Act is limited to unauthorized use of the mark on goods not originating from the proprietor. The sale of genuine goods, properly marked by the trade mark proprietor, falls outside the scope of infringement. The Court further determined that the evidence did not establish any misrepresentation by the respondent that the appellant would honour guarantees for the goods sold, nor was there a likelihood of such...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.