Ramsay Son and Parker (Pty) Ltd v Media 24 Ltd and Another (4656/04) [2005] ZAWCHC 8; 2008 BIP 149 (C) (26 January 2005)

Ramsay Son and Parker (Pty) Ltd v Media 24 Ltd and Another (4656/04) [2005] ZAWCHC 8; 2008 BIP 149 (C) (26 January 2005)

The court found that 'Wegbreek' is a close translation of 'Getaway' and conveys the same concept, which is significant in a multilingual country. The evidence of actual confusion among consumers, including references to 'Wegbreek' as the Afrikaans version of 'Getaway', supported the likelihood of deception or...

Source-derived case information.

Citation
[2005] ZAWCHC 8
Parties
Applicant: Ramsay, Son and Parker (Pty) Ltd; Respondent: Media 24 Ltd; Respondent: New Media Publishing (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 January 2005
Case Number
4656/04
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted; respondents interdicted from infringing trade mark and passing off; counter-application dismissed; costs awarded to applicant.
Judges
A.M. Motala
Legal Topics
Trade Mark Infringement, Passing Off, Disclaimer of Trade Mark, Estoppel, Acquiescence
Intellectual Property Commercial and Corporate Trade Mark Infringement Passing Off Disclaimer of Trade Mark Estoppel Acquiescence

Source-derived case record

Summary, issues, holding and outcome

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Parties

Ramsay, Son and Parker (Pty) Ltd

Applicant

Media 24 Ltd

Respondent

New Media Publishing (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether respondents' use of the mark 'Wegbreek' infringes applicant's registered trade mark 'Getaway'.
  2. 2 Whether the respondents' conduct amounts to passing off their magazine as associated with the applicant's 'Getaway' magazine.
  3. 3 Whether the applicant acquiesced in or is estopped from objecting to respondents' use of 'Wegbreek'.

Ratio Decidendi

The court found that 'Wegbreek' is a close translation of 'Getaway' and conveys the same concept, which is significant in a multilingual country. The evidence of actual confusion among consumers, including references to 'Wegbreek' as the Afrikaans version of 'Getaway', supported the likelihood of deception or confusion. The similarities in content, format, and target market between the two magazines reinforced the finding of trade mark infringement and passing off. The applicant's failure to object immediately did not amount to acquiescence or estoppel, as there was no unequivocal indication of acceptance and no detrimental reliance by respondents. The request for a disclaimer was...

Court Disposition

Application granted; respondents interdicted from infringing trade mark and passing off; counter-application dismissed; costs awarded to applicant.

Orders

  • First and Second Respondents are interdicted from infringing the Applicant's rights acquired by the registration of Trademark No 92/0456 GETAWAY, including use of the mark 'WEGBREEK'.
  • First and Second Respondents are interdicted from passing off their business or products as those of 'GETAWAY' or any confusingly similar mark, including 'WEGBREEK'.