For Trade Mark see:
.
LAWSA Reissue (Vol 29, paras 1 306)
.
Webster, GC and Page, NS The South African Law of Trade Marks 3ed Durban Butterworths 1986
Cases referred to in judgment
Adidas Sportschuffabriken Adi Dassler KG v Harry Walt & Company (Pty)
Ltd 1976 (1) SA 530 (T)
199
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA
235 (2001 (3) SA 884) (SCA)
200
Cavalla Limited v International Tobacco of South Africa Limited
1953 (1) SA 461 (T)
198
Hudson & Knight v DH Brothers Industries (Pty) Ltd t/a Willowtown Oil &
Cake Mills and another 1979 (4) SA 221 (N)
198
Juvena Produits De Beaute SA v BLP Import & Export 1980 (3) SA 210 (T)
199
PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623
(A)
198
Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234 (C)
197
Triang Pedigree South Africa (Pty) Limited v Prima Toys (Pty) Limited
1985 (1) SA 448 (A)
199
Triomed (Pty) Ltd v Beecham Group Plc and others [2001] 2 All SA 126
(2001 (2) SA 522) (T)
200
View Parallel Citation
Judgment
TRAVERSO DJP:
[1]
The applicant is the manufacturer and distributor of household bleach which is contained in a distinctive get
up bearing the applicant's trade
Page 196 of [2004] 1 All SA 194 (C)
mark "Albex". The applicant has manufactured and distributed Albex since 1956. It is not in dispute that in
consequence of the product's longevity, substantial expenditure on advertising and maintenance of the
quality of the project, considerable goodwill attaches to both the getup and trade mark. It is also not
disputed that the applicant enjoys a substantial market.
[2]
The respondent has commenced manufacturing and distributing a bleach with a similar getup under the name
of "All Blax".
[3]
The applicant therefore contends that the respondent is infringing the applicant's rights as the registered
proprietor of the Albex trade mark, and on the passingoff of its goods as those of the applicant.
[4]
The applicant is the registered proprietor of Trademark Registration Number 1956/01595 Albex in Class 3. This
trade mark is registered in respect of "common soap, detergents, starch, blue and other preparations
(including bleaching preparations) for laundry use".
[5]
The applicant has made longstanding and continuous use of this trade mark since 1956. It is common cause
that Albex is wellknown to a substantial number of people interested in household bleach in South Africa.
[6]
The applicant's Albex bleach is a premium household bleach as it contains 3,5% chlorine which is the active
ingredient of sodium hypochloride.
[7]
Albex is sold in distinctive black plastic bottles. Albex regular bleach is marketed in the colours black and
green. Albex bleach is extensively marketed and sold in the Western Cape and Eastern Cape Provinces. It is
sold and distributed through various retailers and wholesalers, as well as smaller stores and Spaza shops in
townships and informal settlement areas.
View Parallel Citation
[8]
The market for Albex bleach in the Western Cape is predominantly for persons residing on the Cape Flats and
in the Cape Peninsula.
[9]
Albex regular bleach is sold in a black plastic bottle with a distinctive green cap. Until July 2002 the green cap
was a snap cap, whereafter the applicant started using the more expensive durable screw cap which is
presently in use. The label on the bottle prominently displays the trade mark Albex in bold white lettering