South Africa Case Law

Cochrane Steel Products v Jumalu Fencing (166/2021)

Cochrane Steel Products v Jumalu Fencing (166/2021) [2022] ZASCA 100; 2022 BIP 483 (SCA) (22 June 2022)

Court

Supreme Court of Appeal

Case number

166/2021

Judges

Maya, Makgoka, Gorven, Meyer, Matojane

The court held that the words 'clear view' are ordinary, non-distinctive, and commonly used descriptively in the fencing industry. The appellant's trade mark registration was subject to a disclaimer that does not bar others from bona fide descriptive use of 'clear view'. The respondent's use of 'clear view' was found to be descriptive of its fencing products and their characteristics, not likely to mislead or deceive as to origin. The evidence did not support the appellant's contention that the respondent's use was not bona fide. The passing-off claim failed because the appellant did not esta…

Source excerpt

• Trade Mark Infringement
• Disclaimer Of Non Distinctive Elements
• Passing Off
• Bona Fide Descriptive Use
• Unlawful Competition

Cochrane Steel Products (Pty) Ltd v M-Systems Group (1272/2016)

Cochrane Steel Products (Pty) Ltd v M-Systems Group (1272/2016) [2017] ZASCA 189; 2017 BIP 134 (SCA) (13 December 2017)

Court

Supreme Court of Appeal

Case number

1272/2016

Judges

Navsa, Ponnan, Bosielo, Tsoka, Schippers

The Supreme Court of Appeal held that neither Cochrane nor any other trader is entitled to exclusive rights over the ordinary English words 'clear' and 'view', which constitute the composite mark 'CLEARVU'. These words are commonly used descriptively in the fencing industry, and the registration of the mark should not inhibit their bona fide use by others. The court affirmed that the imposition of a disclaimer and admission, as ordered by the court below, was warranted to prevent unjustified monopolies and to ensure fair competition. The court amended paragraph 1.2 of the order by deleting th…

Source excerpt

• Trade Mark Registration
• Disclaimer Of Non Distinctive Elements
• Distinctiveness Of Marks
• Exclusive Rights Limitation

Cadbury (Pty) Ltd v Beacon Sweets & Chocolates (Pty) Ltd and Another (573/97)

Cadbury (Pty) Ltd v Beacon Sweets & Chocolates (Pty) Ltd and Another (573/97) [2000] ZASCA 2; 2000 (2) SA 771 (SCA); [2000] 2 All SA 1 (A) (16 March 2000)

Court

Supreme Court of Appeal

Case number

573/97

Judges

Vivier, Harms, Marais, Streicher, Farlam

The Supreme Court of Appeal held that “Liquorice Allsorts” was generic/descriptive and ordered a disclaimer preventing exclusive trade mark rights in the term.

• Trade Mark Rectification
• Disclaimer Of Non Distinctive Elements
• Capability Of Distinguishing
• Generic Terms In Trade Marks
• Trade-mark-rectification
• Disclaimer-of-non-distinctive-elements