Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd (408/08) [2009] ZASCA 89; 2010 (2) SA 600 (SCA); [2010] 1 All SA 25 (SCA); 2009 BIP 192 (SCA) (11 September 2009)

Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd (408/08) [2009] ZASCA 89; 2010 (2) SA 600 (SCA); [2010] 1 All SA 25 (SCA); 2009 BIP 192 (SCA) (11 September 2009)

The Supreme Court of Appeal held that Global Warming's use of the stripe device on its footwear did not infringe Puma's registered trade marks under section 34(1)(a) of the Trade Marks Act. The court found that the average consumer would perceive 'DT NEW YORK' as the trade mark and would recognize the differences between the stripe device used by Global Warming and Puma's registered marks. The court emphasized that the test for likelihood of confusion is objective and must be based on the overall impression of the marks, not on a detailed comparison or the subjective intention of the defendant. The court also clarified that damages based on notional royalties do not require proof of...

Citation
[2009] ZASCA 89
Parties
Appellant: Puma AG Rudolf Dassler Sport; Respondent: Global Warming (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
11 September 2009
Case Number
408/08
Procedural Posture
Civil Appeal / Appeal From High Court, First Instance
Outcome
Appeal dismissed with costs.
Judges
Harms, Heher, Van Heerden, Maya, Wallis
Legal Topics
Trade Mark Infringement, Likelihood of Confusion, Reasonable Royalty, Objective Comparison, Source Identifier
Intellectual Property Trade Mark Infringement Likelihood of Confusion Reasonable Royalty Objective Comparison Source Identifier

Case Brief

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Parties

Puma AG Rudolf Dassler Sport

Appellant

Global Warming (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, First Instance

Legal Issues

  1. 1 Whether Global Warming (Pty) Ltd's use of a stripe device on footwear infringed Puma's registered trade marks under section 34(1)(a) of the Trade Marks Act.
  2. 2 Whether the stripe device used by Global Warming (Pty) Ltd is likely to deceive or cause confusion with Puma's registered marks.
  3. 3 Whether Puma is entitled to damages calculated on a notional royalty basis.

Ratio Decidendi

The Supreme Court of Appeal held that Global Warming's use of the stripe device on its footwear did not infringe Puma's registered trade marks under section 34(1)(a) of the Trade Marks Act. The court found that the average consumer would perceive 'DT NEW YORK' as the trade mark and would recognize the differences between the stripe device used by Global Warming and Puma's registered marks. The court emphasized that the test for likelihood of confusion is objective and must be based on the overall impression of the marks, not on a detailed comparison or the subjective intention of the defendant. The court also clarified that damages based on notional royalties do not require proof of...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.