against a black background. A green swirl with white stripes surrounds the trade mark. The same green is
used in the swirl as for the container's cap.
[10] During September 2003 the applicant for the first time became aware of the fact that the respondent had
commenced producing and selling a regular household bleach under the name All Blax. This bleach is also
bottled in a black container with a green snap cap with colours identical to those of the Albex regular bleach.
The name All Blax is printed in bold white lettering set against a black background and is surrounded in turn
by a similar green as that employed for the container's cap.
[11] It is trite that in trade mark infringement, the comparison is limited to a comparison of the infringing mark with
the registered trade mark. Section 34(1)(a) of the Trademarks Act 194 of 1993 provides:
"34.
Infringement of registered trade mark. (1) The rights acquired by registration of a trade mark shall be infringed
by
(a)
the unauthorised use in the course of trade in relation to goods or services in respect of which the trade
mark is registered, of an identical
Page 197 of [2004] 1 All SA 194 (C)
mark or of a mark so nearly resembling it as to be likely to deceive or cause confusion."
[12] For the purposes of interdictory relief claimed pursuant to the foresaid section, an applicant must show:
(a)
use or threatened use reasonably apprehended,
(b)
of a mark so nearly resembling the applicant's registered trade mark as to be likely to deceive or cause
confusion,
(c)
that such use or threatened use is or will be used in the course of trade and in relation to bleach, and
(d)
such use is not authorised by the applicant.
In passing off matters on the other hand the comparison is a wider one comparing matters extraneous of
[13]
the marks. It is based on the likelihood that the similarity of another's getup may mislead the public.
Accordingly, this is a comparison between the whole of the getup of the applicant against the whole of the
getup of the respondent. (See Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234
(C) at 240CD.)
[14] In the final analysis the only issue to decide in this matter is whether on a comparison of the marks and on
the entire getup they are likely to deceive or cause confusion. In this regard the onus is on the applicant to
prove a probability of deception or confusion.
[15] The following principles govern the basis upon which the comparison must be made:
View Parallel Citation
"In an infringement action the onus is on the plaintiff to show the probability or likelihood of deception or
confusion. It is not incumbent upon the plaintiff to show that every person interested or concerned (usually as
customer) in the class of goods for which his trade mark has been registered would probably be deceived or
confused. It is sufficient if the probabilities establish that a substantial number of such persons will be deceived or
confused. The concept of deception or confusion is not limited to inducing in the minds of interested persons the
erroneous belief or impression that the goods in relation to which the defendant's mark is used are the goods of
the proprietor of the registered mark, ie the plaintiff, or that there is a material connection between the
defendant's goods and the proprietor of the registered mark; it is enough for the plaintiff to show that a substantial
number of persons will probably be confused as to the origin of the goods or the existence or nonexistence of
such a connection.
The determination of these questions involves essentially a comparison between the mark used by the defendant
and the registered mark and, having regard to the similarities and differences in the two marks, an assessment of
the impact which the defendant's mark would make upon the average type of customer who would be likely to
purchase the kind of goods to which the marks are applied. This notional customer must be conceived of as a
person of average intelligence, having proper eyesight and buying with ordinary caution. The comparison must be
made with reference to the sense, sound and appearance of the marks. The marks must be viewed as they would
be encountered in the marketplace and against the background of relevant surrounding circumstances. The
marks must not only be considered side by side, but also separately. It must be borne in mind that the ordinary
purchaser may encounter goods, bearing the defendant's mark, with an imperfect recollection of the registered
mark and due allowance must be made for this. If each
Page 198 of [2004] 1 All SA 194 (C)
of the marks contains a main or dominant feature or idea the likely impact made by this on the mind of the
customer must be taken into account. As it has been put, marks are remembered rather by general impressions
or by some significant or striking feature than by a photographic recollection of the whole. And finally
consideration must be given to the manner in which the marks are likely to be employed as, for example, the use
of name marks in conjunction with generic description of the goods.
. . .
As I have emphasised, however, the comparison must not be confined to a viewing of the marks side by side. I
must notionally transport myself to the market place (see the remarks of Colman J in Laboratoire Lachartre SA v
ArmourDial Incorporated 1976 (2) SA 744 (T) at 746D) and consider whether the average customer is likely to be
deceived or confused. And here I must take into account relevant surrounding circumstances, such as the way in