similarities and differences in the two marks" as Corbett JA said (at 641A).
Recognising these differences, it is convenient to determine the dominant features of both marks. First, the use
of an abbreviated name containing the letters "PP". Secondly, these names are enclosed in curvilinearly shaped
boxes, divided into an inner and an outer area. Each box contains descriptive words. Lastly, although the trade
mark registration is not limited as to colour, the appellants have chosen the Society's corporate blue.
Bearing this in mind, the inquiry turns to the potential customer. Mr Bowman submitted that the Society's
customers are necessarily professionals whereas the appellants endeavour to provide a professional service to the
man in the street. Roux J's response to this was that it is a fiction that professional people are not easily misled.
Another answer is that the Society's mark is registered for all insurance and financial services. It is entitled to
market shortterm insurance to the public. In the end one is entitled to envisage a young professional who wishes
to obtain professional insurance. He knows that there is a body that caters for his kind; it uses the word
"Professional" as part of its name; it also uses an abbreviated name; its corporate colour is blue. The dominant
features referred to earlier would be uppermost to his mind. He encounters the oval logo. Not only do the dominant
features strike him, but the logo tells him that the appellants provide "professional personal insurance" the
business of the Society and hardly a true description of shortterm insurance. In my judgment the likelihood of
deception and confusion is apparent even in the absence of evidence of actual confusion.
I therefore conclude that Roux J was correct in holding that the oval logo incorporating the letters PPI infringes
the Society's device mark. His order, in addition, interdicts infringement of the "PPS" letter mark. This is not based
upon anything said in the judgment. But upon reflection I am satisfied that his order was correctly made. The order
cannot be construed to mean that the marks "PPI" and "PPS" simpliciter are confusingly similar, simply because the
Society never sought to make
View Parallel Citation
out such a case. However, interdicts are granted not only for injuries actually committed but also for injuries
reasonably apprehended. Having regard to the conduct of the appellants in appropriating one trade mark of the
Society, dressing itself up in the Society's corporate colours, inappropriately using the terms "professional" and
"personal insurance" in the context of shortterm insurance, and in the light of Mr Jacobs's unconvincing explanation
for the adoption of the name and logo, there is a reasonable apprehension that the "PPS" mark may also be
infringed by future conduct. Mr Puckrin in this connection referred us to a statement in Broderick & Bascom Rope Co v
Manoff [1930] 41 F (2d) 353 at 354, to which I subscribe:
"The due protection of trademarks and similar rights requires that a competitive business, once convicted of unfair
competition in a given particular, should thereafter be required to keep a safe distance away from the margin line even if
that requirement involves a handicap as compared with those who have not disqualified themselves."
In the event the appeal is dismissed with costs, including those consequent upon the employment of two counsel.
(Marais, Schutz, Zulman and Plewman JJA concurred in the judgment of Harms JA.)
For the appellants:
L Bowman SC and JJ Roestorf instructed by Swart Redelinghuys Nel & Vennote Ingelyf, Krugersdorp and Schoeman
Maree Ingelyf, Bloemfontein
Page 451 of [1997] 4 All SA 444 (A)
For the respondent:
CE Puckrin SC and JN Cullabine instructed by DM Kisch Incorporated, Johannesburg and Naudes, Bloemfontein
ANNEXURE "A"
ANNEXURE "B"