PPI Makelaars and another v Professional Provident Society of South Africa
[1997] 4 All SA 444 (A)
Division:
Supreme Court of Appeal
Date:
29 September 1997
Case No:
249/96
Before:
Harms, Marais, Schutz, Zulman and Plewman JJA
Sourced by:
JJF Hefer and I Potgieter
Summarised by:
S Moodliar
Parallel Citation:
1998 (1) SA 595 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
Civil procedure Jurisdiction Trade Marks Act 194 of 1993 did not restrict jurisdiction on trade mark matters to the
Transvaal Provincial Division Any High Court division having jurisdiction in terms of the common law would be
competent to hear an infringement matter.
Interdicts Requirements Interdicts are granted not only for injuries actually committed but also for injuries reasonably
apprehended.
Interpretation of statutes Trade Marks Act 194 of 1993 Section 1 Definition of "court" Whether definition is to be
interpreted to restrict jurisdiction in respect of infringement proceedings to the Transvaal Provincial Division Any High
Court division having jurisdiction in terms of the common law would be competent to hear an infringement matter.
Trade marks Infringement of Test for Whether a substantial number of persons would probably be confused as to the
origin of the goods or the existence or nonexistence of a material connection between the goods of the two parties
Confusion more likely when dealing with services as opposed to goods.
Trade marks Jurisdiction in respect of Trade Marks Act 194 of 1993 did not restrict jurisdiction on trade mark matters
to the Transvaal Provincial Division Any High Court division having jurisdiction in terms of the common law would be
competent to hear an infringement matter.
Editor's Summary
The Respondent ("PPS") was a society which provided to its members life insurance, medical benefits, sickness and
disability cover, retirement benefits and hospitalisation schemes. The members of PPS were professional people.
The First
Page 445 of [1997] 4 All SA 444 (A)
Appellant ("PPI") was a shortterm insurance broker whose logo was similar to that of PPS.
PPS challenged PPI's use of the logo as infringing PPS's two trade marks. PPI opposed the application and also
alleged that the Witwatersrand Local Division did not have jurisdiction to hear the matter as the word "court" in
section 1 of the Trade Marks Act 194 of 1993 was defined as the Transvaal Provincial Division.
Held On the issue of jurisdiction, the Court examined the definition of "court" i n section 1 of the Act and, in
particular, the proviso that "in relation to any claim or counterclaim for removal, amendment or variation of, or other
relief affecting any entry in, the register arising from or forming part of proceedings instituted in any other division of
the said [High] Court having jurisdiction in relation to the proceedings, ['court'] includes that division in respect of
such claim or counterclaim". The Court held that this proviso granted jurisdiction to any division of the High Court in
which proceedings had been instituted. Jurisdiction was accordingly not limited to the Transvaal Provincial Division.
With regard to the trade mark infringement allegations, the Court held that the test with regard to goods was
whether a substantial number of persons would probably be confused as to the origin of the goods or the existence
or nonexistence of a material connection between the goods of the two parties. The subject of the instant case
was services and not goods, and the Court noted that the likelihood of confusion would be more easily established
than in a comparable goods trade mark case.
On the facts, the Court found that the likelihood of deception and confusion in relation to the two logos was
apparent even in the absence of actual confusion.
The interdict with regard to the use of the "PPS" letter mark had also been correctly made as interdicts were
granted not only for injuries actually committed but also for injuries reasonably apprehended.
The appeal was accordingly dismissed with costs.
Notes
For Civil procedure generally, see LAWSA (Vol 3, paragraphs 1768)
For the Trade Marks Act 194 of 1993, see Butterworths Statutes of South Africa 1996 (Vol 1)
For Trade marks, see LAWSA (Vol 29, paragraphs 1276)