Weber-Stephen Products Company v Alrite Engineering (Pty) Ltd. and Others (201/91) [1992] ZASCA 2; 1992 (2) SA 489 (AD); (24 February 1992)

Weber-Stephen Products Company v Alrite Engineering (Pty) Ltd. and Others (201/91) [1992] ZASCA 2; 1992 (2) SA 489 (AD); (24 February 1992)

The court held that the notices affixed to the Mirage Oven did not sufficiently distinguish the product from the Weber Grill, as the confusion arose from the similarity in shape and get-up, which was the basis of the appellant's reputation and goodwill. The interdict required the respondents to make it perfectly clear to the public that their product was not that of the appellant, and the notices failed to eliminate the likelihood of confusion. The respondents were not entitled to continue selling the Mirage Oven in its present form unless they could effectively distinguish it from the Weber Grill, which, in the circumstances, would require altering the shape or configuration of the...

Citation
[1992] ZASCA 2
Parties
Appellant: Weber-Stephen Products Company; Respondent: Alrite Engineering (Pty) Limited; Respondent: James John Bayman Jordan; Respondent: Raymond Gabriel Joseph
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 February 1992
Case Number
201/91
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division; Application for Declaratory Relief and Costs
Outcome
Appeal allowed with costs; application to lead further evidence dismissed; declaratory relief granted that respondents acted in conflict with the full court order and breached it by sale and distribution of the Mirage Oven with notices affixed.
Judges
CORBETT, EM GROSSKOPF, MILNE, GOLDSTONE, VAN DEN HEEVER
Legal Topics
Passing Off, Get Up, Trade Dress, Deceptive Similarity, Goodwill, Distinguishing Features
Commercial and Corporate Intellectual Property Passing Off Get Up Trade Dress Deceptive Similarity Goodwill Distinguishing Features

Case Brief

Summary, issues, holding and outcome

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Parties

Weber-Stephen Products Company

Appellant

Alrite Engineering (Pty) Limited

Respondent

James John Bayman Jordan

Respondent

Raymond Gabriel Joseph

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division; Application for Declaratory Relief and Costs

Legal Issues

  1. 1 Whether the sale or display of the Mirage Oven with attached notices constitutes an infringement of the interdict granted for passing-off.
  2. 2 Whether the respondents' notices sufficiently distinguish the Mirage Oven from the Weber Grill to avoid passing-off.
  3. 3 Whether the respondents are obliged to alter the shape of the Mirage Oven to comply with the interdict.

Ratio Decidendi

The court held that the notices affixed to the Mirage Oven did not sufficiently distinguish the product from the Weber Grill, as the confusion arose from the similarity in shape and get-up, which was the basis of the appellant's reputation and goodwill. The interdict required the respondents to make it perfectly clear to the public that their product was not that of the appellant, and the notices failed to eliminate the likelihood of confusion. The respondents were not entitled to continue selling the Mirage Oven in its present form unless they could effectively distinguish it from the Weber Grill, which, in the circumstances, would require altering the shape or configuration of the...

Court Disposition

Appeal allowed with costs; application to lead further evidence dismissed; declaratory relief granted that respondents acted in conflict with the full court order and breached it by sale and distribution of the Mirage Oven with notices affixed.

Orders

  • The application to lead further evidence is dismissed with costs.
  • The appeal is allowed with costs, including the costs of two counsel.