Roccat GMBH v SMD Technologies CC (27172/2015) [2016] ZAGPPHC 777; 2016 BIP 245 (GP) (30 August 2016)

Roccat GMBH v SMD Technologies CC (27172/2015) [2016] ZAGPPHC 777; 2016 BIP 245 (GP) (30 August 2016)

The court found that the applicant's device mark and the opponent's registered mark differ significantly in visual, aural, and conceptual respects. The stylised font, the depiction of the letter 'O' as a speaker, and the overall design of the applicant's mark create a distinct impression that is not likely to be confused with the opponent's mark, which is represented in a commonplace font and spelling. The court held that the likelihood of confusion or deception is not established, even when considering the doctrine of imperfect recollection and the average consumer's perspective. The opposition therefore fails, and the application for registration of the device mark is to proceed.

Citation
[2016] ZAGPPHC 777
Parties
Applicant: Roccat GMBH; Respondent: SMD Technologies CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 August 2016
Case Number
27172/2015
Procedural Posture
Opposition Proceedings / High Court Adjudication Following Referral by Registrar of Trade Marks
Outcome
Opposition dismissed; application for registration of the device mark to proceed; costs awarded against the opponent.
Judges
C J van der Westhuizen
Legal Topics
Trade Mark Opposition, Likelihood of Confusion, Visual and Aural Similarity, Doctrine of Imperfect Recollection
Intellectual Property Trade Mark Opposition Likelihood of Confusion Visual and Aural Similarity Doctrine of Imperfect Recollection

Case Brief

Summary, issues, holding and outcome

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Parties

Roccat GMBH

Applicant

SMD Technologies CC

Respondent

Procedural Posture

Opposition Proceedings / High Court Adjudication Following Referral by Registrar of Trade Marks

Legal Issues

  1. 1 Whether the applicant's device mark is so similar to the opponent's registered mark that its registration would likely deceive or cause confusion.
  2. 2 Whether the visual, aural, and conceptual differences between the marks are sufficient to avoid confusion.
  3. 3 Whether the doctrine of imperfect recollection applies in the present circumstances.

Ratio Decidendi

The court found that the applicant's device mark and the opponent's registered mark differ significantly in visual, aural, and conceptual respects. The stylised font, the depiction of the letter 'O' as a speaker, and the overall design of the applicant's mark create a distinct impression that is not likely to be confused with the opponent's mark, which is represented in a commonplace font and spelling. The court held that the likelihood of confusion or deception is not established, even when considering the doctrine of imperfect recollection and the average consumer's perspective. The opposition therefore fails, and the application for registration of the device mark is to proceed.

Court Disposition

Opposition dismissed; application for registration of the device mark to proceed; costs awarded against the opponent.

Orders

  • The opposition to the registration of the device mark is dismissed.
  • The application for registration of the device mark is to proceed to registration.