Shimansky and Another v Browns the Diamons Store (Pty) Ltd (8304/13) [2013] ZAWCHC 97; 2013 BIP 286 (WCC) (20 June 2013)

Shimansky and Another v Browns the Diamons Store (Pty) Ltd (8304/13) [2013] ZAWCHC 97; 2013 BIP 286 (WCC) (20 June 2013)

The court found that although there are visual similarities between the marks EVOLYM and EVOLVE, particularly in length and the first four letters, the differences in the final letters and the semantic distinction between the marks outweigh the similarities. Phonetically, the marks are sufficiently distinct, with EVOLYM being trisyllabic and EVOLVE bisyllabic, and the final sounds differing. The applicants failed to discharge the onus of proving that a substantial number of customers would be likely to be deceived or confused by the respondent's use of EVOLVE. The court held that the global appreciation of the marks, considering their visual, aural, and conceptual features, did not...

Citation
[2013] ZAWCHC 97
Parties
Applicant: Yair Shimansky; Applicant: Mylight Holdings (Pty) Ltd; Respondent: Browns The Diamond Store (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 June 2013
Case Number
8304/13
Procedural Posture
Urgent Application / Final Interdict Application Under S34(1)(a) of the Trade Marks Act
Outcome
Application dismissed with costs.
Judges
KM Savage
Legal Topics
Trade Mark Infringement, Likelihood of Confusion, Visual and Phonetic Similarity, Onus of Proof, S34 Trade Marks Act
Intellectual Property Trade Mark Infringement Likelihood of Confusion Visual and Phonetic Similarity Onus of Proof S34 Trade Marks Act

Case Brief

Summary, issues, holding and outcome

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Parties

Yair Shimansky

Applicant

Mylight Holdings (Pty) Ltd

Applicant

Browns The Diamond Store (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Interdict Application Under S34(1)(a) of the Trade Marks Act

Legal Issues

  1. 1 Whether the respondent's use of the mark EVOLVE infringes the applicant's registered trade mark EVOLYM under s34(1)(a) of the Trade Marks Act.
  2. 2 Whether the marks are so nearly resembling as to be likely to deceive or cause confusion among customers.
  3. 3 Whether the applicants have discharged the onus to prove a likelihood of deception or confusion.

Ratio Decidendi

The court found that although there are visual similarities between the marks EVOLYM and EVOLVE, particularly in length and the first four letters, the differences in the final letters and the semantic distinction between the marks outweigh the similarities. Phonetically, the marks are sufficiently distinct, with EVOLYM being trisyllabic and EVOLVE bisyllabic, and the final sounds differing. The applicants failed to discharge the onus of proving that a substantial number of customers would be likely to be deceived or confused by the respondent's use of EVOLVE. The court held that the global appreciation of the marks, considering their visual, aural, and conceptual features, did not...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.