The only issue raised in the papers and considered by Roux J was whether the oval logo infringed the Society's
two trade marks. As mentioned at the outset, the Society relies upon section 34(1)(a) of the 1993 Act. Since it is
common cause that the marks concerned are not identical, that the appellants' use is in relation to class 36
services, is used in the course of trade and is unauthorised, what falls for decision is whether the appellants' oval
logo so nearly resembles the Society's marks "as to be likely to deceive or cause confusion". A useful benchmark is
t h e o f t q u o t e d t e s t f o r m u l a t e d b y C o r b e t t J A i n PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) 640G641E:
"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, i.e. 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 non
existence of such a connection.
The determination of these questions involves essentially a comparison
View Parallel Citation
between the mark used by the defendant and the registered mark and, having
Page 449 of [1997] 4 All SA 444 (A)
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 market place and against the background of relevant
surrounding circumstance. 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 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 a generic description of the goods."
This dictum deals with goods and not service marks, the subject of the present case. The latter marks are inherently
different: services are ephemeral; they are often concerned with the provision of trade marked products of third
parties; they are not offered side by side enabling customers to make instant comparisons; quality control is
difficult, if not absent. In addition, service marks such as those relating to vague topics like financial services, are
more indefinite than goods marks relating to, say, clothing. For these reasons, it seems to me, that it is fair to
assume that, in a case like this, the likelihood of confusion may more easily be established than in a comparable
goods mark case.
Mr Bowman for the appellant stressed during the course of his argument ten points of "dissimilarity" between the
Society's device mark and the appellants' logo, whilst conceding that all are not necessarily relevant to trade mark
infringement. They are:
(a) In the appellants' logo, two concentric ellipses are used. The Society uses three concentric circles; (b) in the
appellants' logo there is a half moon above the letters "PPI". There is no half moon above the letters "PPS" in the
Society's logo; (c) the words "Professional personal insurance" appear on the appellants' logo, beneath the letters
"PPI" in the inner of the two concentric ellipses. Nothing appears underneath the letters "PPS" on the Society's
logo; (d) there is a half moon underneath the words "Professional personal insurance" on the appellants' logo. The
letters "PPS" fill the inner circle of the Society's logo and provide no room for a half moon of this kind or anything
resembling it; (e) the word "Professional" does not appear anywhere on the respondent's logo; (f ) the letters
"PPI" and "Professional personal insurance" are of uniform size on appellants' logo. The inner "P" of the Society's
"PPS" is larger than the outer letters;
View Parallel Citation
(g) there are no words within the outer ellipse of the appellants' logo. The words "Protection Providence Voorsorg
Beskerming" appear in the outer circle of the Society's logo; (h) the appellants' logo is used on its stationery (but
not otherwise) together with and as part of a folded flap. The Society's logo (it is said incorrectly) is used by itself;
(i) the "PPI Makelaars" appears prominently next to the logo used by the appellants on their letterheads and other
stationery, whereas no such legend or any equivalent of it appears on any of the Society's stationery; ( j) the
letters "PPI" on the appellants' logo are the first letters of the words used on the logo, i.e. "Professional Personal
Insurance". "Professional Provident Society" does not appear on the Society's mark.
Page 450 of [1997] 4 All SA 444 (A)
These differences did not impress Roux J. He said that they had nothing to do with the PlasconEvans test. This
overstates the position. The test involves a comparison of the marks as a whole but one does have regard to "the