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South Africa decisions
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Monster Energ Company v Trade Kings SA (Pty) Ltd and Another (33735/18) [2019] ZAGPPHC 569 (17 October 2019)
The High Court dismissed Monster Energy’s opposition to Trade Kings’ trade mark applications, finding the marks and goods not deceptively similar.
El Baik Food Systems Co. SA v Al Baik Fast Food Distribution Co. S.A.E (A998/13) [2015] ZAGPPHC 620; 2015 BIP 302 (GP) (1 September 2015)
The court held that the respondent's adoption and proposed use of the subject mark in South Africa constituted a bona fide claim to proprietorship under the Trade Marks Act. The appellant failed to provide sufficient evidence of bad faith, misrepresentation, or fraudulent conduct by the respondent. The appellant did not establish that its Albaik marks were well-known in South Africa or that registration of the subject mark would cause deception or confusion. The territorial nature of trade mark rights means that foreign use or registration does not bar local appropriation unless the mark is w…
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TPN Group (Pty) Limited v Ebay Inc (37922/13) [2015] ZAGPPHC 190; 2017 BIP 57 (GP); 2015 BIP 213 (GP) (16 March 2015)
The court found that although the RENTBAY mark shares the 'Bay' element with eBay's marks, both marks consist of two equally significant features, and the combination of 'Rent' and 'Bay' in TPN's mark is sufficiently distinct from eBay's use of 'eBay'. The word 'Bay' is not an invented word and is commonly used in other trade marks. The services for which TPN seeks registration are either not identical or only superficially similar to those covered by eBay's registrations. The evidence did not establish a reasonable likelihood of confusion or deception among the public. The court also found t…
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Mayo Foundation for Medical Education and Research v Theatre Mayo Clinic Company (Pty) Ltd and Others (1428/2006) [2009] ZAGPPHC 110; 2009 BIP 438 (GNP) (14 September 2009)
High Court passing-off dispute over the Mayo name. The applicant proved reputation in South Africa, but the court found the respondents had a lawful shared reputation and tacit consent.
Bayerische Motoren Werke Aktiengesellschaft v Commercial Autoglass (Pty) Ltd (5889/2005) [2006] ZAGPHC 125; 2006 BIP 144 (T) (17 March 2006)
The High Court held that BMW’s registered and well-known marks were infringed by unauthorised use in advertising and labelling of windscreens for BMW vehicles.
AM Moolla Group Ltd and Others v Gap Inc and Others (123/2004) [2005] ZASCA 72; [2005] 4 All SA 245 (SCA); 2005 (6) SA 568 (SCA); 2005 BIP 281 (SCA) (9 September 2005)
The Supreme Court of Appeal held that the principle of territoriality governs trade mark rights in South Africa, and foreign use or registration does not preclude local adoption unless the mark was well known in South Africa at the time of local registration. The respondent failed to establish that its GAP marks were well known in South Africa prior to the appellants' adoption, and thus was not entitled to protection under section 35(3) of the Trade Marks Act or Article 6bis of the Paris Convention. The court found that the appellants failed to prove bona fide use or permitted use of the regi…
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McDonald's Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd. and Another; McDonald's Corporation v Dax Prop CC and Another; McDonald's Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd. and Another (547/95) [1996] ZASCA 82; 1997 (1) SA 1 (SCA); [1996] 4 All SA 1 (A); (27 August 1996)
The Supreme Court of Appeal held McDonald's marks were well-known in South Africa and protected them under section 35, granting interdicts and refusing expungement.
Victoria's Secret Inc v Edgars Stores Ltd. (428/92) [1994] ZASCA 43; 1994 (3) SA 739 (AD); [1994] 4 All SA 307 (AD) (28 March 1994)
The court held that South African trade mark rights turn on local use or a real intention to use, not foreign reputation, and dismissed Victoria's Secret's appeal.
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