distinctive, because, so I understood the argument, the Sprinter is in fact not one single vehicle but a multiplicity of
vehicles and that the applicants appear to be claiming rights in respect of the appearance of buses which they did
not make and in respect of which they disavow any liability.
In Williams t/a Jenifer Williams & Associates v Life Line Southern Transvaal 1996 (3) SA 408 (A) Corbett CJ set out
the relevant principles governing passingoff as follows at 418DH.
"Passingoff is a species of wrongful competition in trade or business. In its classic form it usually consists in A
representing, either expressly or impliedly (but almost invariably by the latter means), that the goods or services
marketed by him emanate in the course of business from B or that there is an association between such goods or
services and the business conducted by B. Such conduct is treated by the law as being wrongful because it results,
or is calculated to result, in the improper filching of another's trade and/or in an improper infringement of his
goodwill and/or causing injury to that other's trade reputation. Such a representation may be made impliedly by A
adopting
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a trade name or a getup or mark for his goods which so resembles B's name or getup or mark as to lead the
public to be confused or to be deceived into thinking that A's goods or services emanate from B or that there is the
association between them referred to above. Thus, in order to succeed in a passingoff action based upon an
implied representation it is generally incumbent upon the plaintiff to establish, inter alia: firstly, that the name, get
up or mark used by him has become distinctive of his goods or services, in the sense that the public associate the
name, getup or mark with the goods or services marketed by him (this is often referred to as the acquisition of
reputation); and, secondly, that the name, getup or mark used by the defendant is such or is so used as to cause
the public to be confused or deceived in the manner described above. These principles are trite and require no
citation of authority."
See also Capital Estate and General Agencies (Pty) Ltd and Others v Holiday Inns Inc and others 1977 (2) SA 916 (A) at
929CD Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 11998 (3) SA 938 (A) at 947FI.
In this case the applicants do not rely on a direct or express representation by the respondent that its AMC bus
is the applicants' product or that it is associated with the applicants' product. The applicants rely on an indirect
representation ie the use of an identical or similar getup.
In AdcockIngram Products Limited v Beecham SA (Pty) Limited 1977 (4) SA 434 (W) at 436H437 E the court
explained the requirement of distinctiveness as follows.
"In the case of an indirect representation, the plaintiff must prove in the first instance that the defendant has used
or is using in connection with his own goods a name, mark, sign or getup which has become distinctive.
'. . . in the sense that by the use of (the plaintiff's) name or mark, etc., in relation to goods they are regarded
by a substantial number of members of the public or in the trade, as coming from a particular source known or
unknown . . .'
(Halsbury, Laws of England 3rd ed vol 38 p 597). In other words, the plaintiff must prove that the feature of his
product on which he relies has acquired a meaning or significance, so that it indicates a single source for goods on
which that feature is used. In T Oertli AG v EJ Bowman (London) Ltd 1957 RPC 388 (CA) Jenkins L.J, put it this way
at p 397:
'It is, of course, essential to the success of any claim in respect of passingoff based on the use of a given
mark or getup that the plaintiff should be able to show that the disputed mark or getup has become by use in
this country distinctive of the plaintiff's goods so that the use in relation to��any goods of the kind dealt in by the
plaintiff of that mark or getup will be understood by the trade and the public in this country as meaning that
the goods are the plaintiff's goods.'
It is not necessary that the getup as a whole should be distinctive, for a part of the getup may be shown to be so
identified with the plaintiff's goods that its use for similar goods is calculated to pass them off as his (Kerly, Law of
Trade Marks and Trade Names, 10 ed p 423). So, in John Haig & Co Limited v Forth Blending Co Ltd 70 (1953) RPC
259 (Court of Session), it was said at p.262 that:
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'A container such as a bottle may be part of the getup of goods of a trader if it is of a peculiar shape which
catches the eye and it is retained in the memory of the ordinary purchaser, and it is associated in the mind of
the purchasing public with the goods of that particular trader alone and of no other.'
In that case it was held that the peculiarly shaped three pinch decanter or 'dimple' bottle had become associated
with the Dimple Haig Whisky blended and marketed by the petitioning company. Again, in CocaCola Co v Barr AG
and Co Ltd 1961 RPC 387, it was considered that the petitioners had made out a prima facie case that their bottle
(which had a waist, carried no label and had fluting) was distinctive of their product CocaCola."
In Jarman and Platt Ltd v I Barget Ltd and others 1977 FSR 260 (CA) at 271272, distinctiveness was explained as
follows:
"The plaintiff must show more than mere prior use by him of the particular getup. He must show that the getup
has become in the mind of the public distinctive of one particular trader and no other trader; so that the getup
has come to mean, to the public, a product coming from a particular commercial source. They, the public, do not
have to know the name of the trader. But it has to be shown that the product is, in the minds of individual
members of the public who are buyers or potential buyers of the goods, the product of that manufacturer 'with
whom I have become familiar'. That is the test. The property arising from that reputation must be actual, proven
goodwill in the mind of the public towards the owner of the reputation. The ownership of that reputation must be
proved."