In the absence of direct evidence as to the reputation of the getup or feature and its consequent distinctiveness
for the purposes of passingoff proceedings the court is required to infer from the evidence relating to the use of
the getup or feature that it has in fact become distinctive. See Cambridge Plan AG and another v Moore and others
1987 (4) SA 821 (D) at 837BE. Hollywood Curl (Pty) Limited and another v Twins Products (Pty) Limited (1)
1989 (1) SA 236 (A) at 251DE.
A case of passingoff may be made out based on the shape or configuration of the article concerned. See Weber
Stephen Products Co v Alrite Engineering (Pty) Limited 1992 (2) SA 489 (A) at 504F505D and the unreported
judgments in the lower courts of Van Zyl, J under case number 5757/87 TPD 21 January 1988 and Eloff, DJP under
case number A979/88 TPD 23 March 1989, and Reckitt & Colman Products Ltd v Borden Inc and others 1990 RPC 341
at 425 line 9 to 426 line 20. The use of trade marks or other features may exclude the likelihood of deception or
confusion arising from the use of a similar getup or feature. See Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son
SA (Pty) Ltd 1993 (2) SA 307 (A) at 318GH. But this will not necessarily follow from the use of different names. It will
always be a factual question. See Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Limited
1976 (1) SA 530 (T) at 538F539E and the judgment of Eloff, DJP in the WeberStephen case at 13 to 15. The
likelihood of confusion or deception is a matter for the court to decide and must not be left for a witness. Reckitt and
Colman SA (Pty) Ltd v SC Johnson and Son SA (Pty) Ltd (supra) at 315 D and the court must decide this issue taking
into account the class of purchasers who are likely to be the purchasers of the goods in question. See Reckitt &
Colman SA (Pty) Ltd v SC Johnson and Son SA (Pty) Ltd (supra) at 315FG.
Page 228 of [2001] 2 All SA 219 (T)
The applicants clearly cannot rely on the shape or configuration of the Sprinter bus exhibited during January
2000. They have not marketed or sold that bus in South Africa. The applicants also cannot rely on the shape or
configuration of the buses into which their Sprinter vehicles have been converted. As already mentioned these
buses are not the applicants' products and do not have a standard shape or configuration.
What the undisputed evidence does show is the following. Since 1996 the applicants have been importing into
South Africa, marketing and selling Sprinter vehicles in the panel van and cab chassis format. There has been
extensive marketing and advertising of the Sprinter vehicles since then. The Sprinter vehicles have been sold
throughout South Africa, and in particular the main centres, by the applicant's extensive dealer network. From a
relatively modest beginning in 1996 the Sprinter vehicles sales now constitute about 25% of the market. The
relevant figures are as follows. 1996 7,2%, 1997 22,8%, 1998 29,1%, 1999 26.3% and January 2000 22,2%. This
translates into 4 455 vehicles sold in the form of vans and freight carriers. A substantial number of these vehicles
have been converted into taxi's or buses. The numbers of vans and freight carriers sold is not disclosed in the
papers.
The one common feature of all the Sprinter vehicles, whether in the original or converted form, is the cab. The
applicants referred to this cab in their brochure, annexure MB7, as a "dynamically styled shortnosed cab".
Whatever this means the cab is an important feature of all the Sprinter vehicles whatever their overall shape or
configuration. From the front the cab's profile is rectangular with rounded edges and from the side the windscreen
and bonnet are almost in a straight line with no break where they meet. Other important features are the relatively
small wheels with low profile tyres. These features are in my view features which will make an impact on the mind
and be retained in the memory. It can be inferred from the marketing and advertising of the Sprinter vehicles and
the sales that these features will have made an impact on the minds of consumers and that they can be regarded
as distinctive. The applicants allege, and it is not disputed, that the public and the market will have become used to
seeing different functional body arrangements built onto the standard front cab chassis and wheel design. Although
this is an inference which the applicants make and not an allegation of fact I agree that it is an inference which
rests fairly on the facts.
This conclusion that the shape of the Sprinter vehicle has become distinctive is supported by a number of the
witnesses called by the applicants who are very familiar with motor vehicles sold in this market. One of these
witnesses, Phillip Palmer, states that the Sprinter has become wellknown in the market and is very popular and
that the outer design of the Sprinter vehicle is visually different from any other commercial vehicle of similar type in
the market. He goes on to say that it is unique in its overall design especially with respect to the entire front end
and that the shape is wellknown and makes the vehicle immediately recognisable. He concludes by saying that this
is what distinguishes the vehicle visually from other commercial vehicles of similar type in the market. This evidence
is not disputed by the respondent. The respondent also does not dispute the evidence of other witnesses such as
Nicholaas Vermeulen, who is very experienced in the field, that the Sprinter shape and design are unique and
distinctive and have become wellknown in South Africa.
I do not agree with the respondent's argument that the shape of the Sprinter is not capable of becoming
distinctive because of the existence of other similarly
Page 229 of [2001] 2 All SA 219 (T)
shaped vehicles in the market. This argument is not supported by the facts. In the first place the vehicles referred
to by the respondent are not all sold in South Africa and in the second place I regard the shapes of these vehicles
as different from that of the Sprinter. Even the Iveco vehicle is different and will be perceived by the purchasers in
the market to be different. The air intake on the bonnet is prominent and there is a clear break where the
windscreen and bonnet meet. The differences will be seen immediately by the public and the relevant purchasers
and in my view will clearly distinguish the cab of the Iveco from that of the Sprinter. At the very least, the shape of
the Sprinter cab in combination with the relatively small wheels and profile of the wheels constitute features which
will imprint themselves on the mind as the distinctive features of the Sprinter. And it is precisely these features