Unilever Plc and Another v Salma Traders (7507/2008) [2008] ZAGPHC 401; 2008 BIP 285 (T) (12 December 2008)

Unilever Plc and Another v Salma Traders (7507/2008) [2008] ZAGPHC 401; 2008 BIP 285 (T) (12 December 2008)

The court found that OMO is a distinctive and well-known trade mark for washing powder in South Africa, enjoying significant reputation and goodwill. The respondent's use of FOAM-O, an invented word aurally and visually similar to OMO, was likely to cause confusion or deception among consumers, particularly those at the lower end of the market who are more susceptible to imperfect recollection. The addition of 'O' to 'FOAM' was not justified and increased the likelihood of confusion. The court held that the applicants had proven, on a balance of probabilities, that the respondent's use of FOAM-O infringed the OMO trade marks under section 34(1)(a) of the Trade Marks Act. The applicants...

Citation
[2008] ZAGPHC 401
Parties
Applicant: Unilever Plc; Applicant: Unilever South Africa Home & Personal Care (Pty) Limited; Respondent: Salma Traders
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
12 December 2008
Case Number
7507/2008
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted; interdict and removal orders issued against respondent; costs awarded to applicants including senior counsel.
Judges
C Pretorius
Legal Topics
Trade Mark Infringement, Likelihood of Confusion, Distinctiveness, Removal of Infringing Goods
Intellectual Property Trade Mark Infringement Likelihood of Confusion Distinctiveness Removal of Infringing Goods

Case Brief

Summary, issues, holding and outcome

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Parties

Unilever Plc

Applicant

Unilever South Africa Home & Personal Care (Pty) Limited

Applicant

Salma Traders

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the respondent's use of the FOAM-O mark infringes the applicants' registered OMO trade marks under section 34(1)(a) of the Trade Marks Act.
  2. 2 Whether the FOAM-O mark is so similar to OMO as to cause deception or confusion among consumers.
  3. 3 Whether the applicants are entitled to an interdict and removal of infringing goods.

Ratio Decidendi

The court found that OMO is a distinctive and well-known trade mark for washing powder in South Africa, enjoying significant reputation and goodwill. The respondent's use of FOAM-O, an invented word aurally and visually similar to OMO, was likely to cause confusion or deception among consumers, particularly those at the lower end of the market who are more susceptible to imperfect recollection. The addition of 'O' to 'FOAM' was not justified and increased the likelihood of confusion. The court held that the applicants had proven, on a balance of probabilities, that the respondent's use of FOAM-O infringed the OMO trade marks under section 34(1)(a) of the Trade Marks Act. The applicants...

Court Disposition

Application granted; interdict and removal orders issued against respondent; costs awarded to applicants including senior counsel.

Orders

  • The respondent is interdicted and restrained from infringing the applicants' registered OMO trade marks by using the trade mark FOAM-O or any similar mark likely to deceive or cause confusion.
  • The respondent is ordered to remove the infringing mark FOAM-O from raw material and, where removal is impossible, to deliver up such material to the applicants.