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South Africa decisions
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Eva-Last Distributors (Pty) Ltd v Timmdek (Pty) Ltd and Another (1729 /2022) [2024] ZAWCHC 126 (8 May 2024)
The High Court allowed an amendment to registered design certificates to record a release date, holding the change did not alter the designs or their validity.
Chespak (Pty) Ltd v MCG Industries (Pty) Ltd (A385/12) [2014] ZAGPPHC 646; 2014 BIP 465 (GP) (27 August 2014)
The court found that the registered design is not a commonplace utilitarian object but possesses unique and distinctive aesthetic features that appeal to the eye. The definitive statement and photographs support the conclusion that the design is protected as an aesthetic design under the Act. The appellant's attempt to isolate every feature as purely functional was rejected, as many features serve both functional and aesthetic purposes. The Chespak crate was found to be strikingly similar to the registered design, with any differences being minor and immaterial. The overall impression is one…
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Bayerische Motoren Werker Aktiengesellschaft v Grandmark International (Pty) Ltd and Another (722/12) [2013] ZASCA 114; 2014 (1) SA 323 (SCA); 2013 BIP 427 (SCA) (18 September 2013)
The Supreme Court of Appeal held that BMW’s replacement car-part designs were functional, not aesthetic, and that use of “BM” on packaging was descriptive, not infringing.
Bayerische Motoren Werke Aktiengesellschaft v Grandmark International (Pty) Ltd and Another (50212/2010) [2012] ZAGPPHC 139 (25 July 2012)
The court found that BMW AG failed to establish contempt of the 1999 court order, as Grandmark provided sufficient evidence to raise reasonable doubt regarding deliberate and mala fide non-compliance. Regarding the E46 design registrations, the court held that BMW AG did not prove the existence of novel aesthetic features; the designs were dictated solely by function and anticipated by prior BMW designs, rendering them unregistrable as aesthetic designs and lacking novelty and originality. The counter-application for revocation of the E46 design registrations succeeded. On trade mark infringe…
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Clipsal Australia (Pty) Ltd and Others v Gap Distributors (Pty) Ltd and Others (657/08) [2009] ZASCA 49; 2010 (2) SA 289 (SCA); [2009] 3 All SA 491 (SCA); 2009 BIP 251 (SCA) (25 May 2009)
The Supreme Court of Appeal held that the order staying the contempt application was appealable because it finally disposed of the respondents' application for a stay, which constituted a self-contained defence independent of the merits of the contempt proceedings. The court found that the High Court misdirected itself by considering the outcome of the review application relevant to the contempt proceedings, as court orders must be obeyed until set aside. The discretion to stay proceedings was not justified on the facts, and the interests of justice did not warrant a stay. The appeal was uphe…
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Clipsal Australia (Pty) Ltd and Another v Trust Electrical Wholesalers and Another (125/06) [2007] ZASCA 24; [2007] 4 All SA 1082 (SCA); 2009 (3) SA 292 (SCA); 2007 BIP 432 (SCA) (23 March 2007)
The Supreme Court of Appeal held that the High Court erred in finding that the registered design lacked novelty and originality. The court confirmed that mosaicing prior art is not permissible for assessing novelty in design law. The registered design was found to be new, as none of the prior art documents disclosed the design as a whole, and the differences identified by the respondents were insubstantial and related only to secondary features. The court clarified that originality under the Designs Act requires independent creation and not mere absence of commonality. The respondents' produc…
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Robinson v D.Cooper Corporation of South Africa (Pty)Ltd. (58/84) [1984] ZASCA 58; [1984] 2 All SA 393 (A) ; 1984 (3) SA 699 (A) (25 May 1984)
The appeal concerned whether a registered metal trap door frame design was protected under the Designs Act or excluded as functional construction.
Homecraft Steel Industries (Pty) Ltd. v S M Hare & Son (Pty) Ltd. and Another (38/84) [1984] ZASCA 36; 1984 (3) SA 681 (A) (29 March 1984)
The court held that the appellant's registered design was valid, as it was not dictated solely by function and possessed visual appeal, particularly in the fluting. The design was not anticipated by the Osborn or Ventco elements, as they were substantially different in key visual respects. However, the respondents' fascia board did not infringe the registered design, as it differed materially in the number and shape of flutes and valleys, and the degree of novelty in the appellant's design was limited, restricting the scope of protection. The appeal and cross-appeal were dismissed, but the co…
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