Value Car Group Ltd and another v Value Car Hire (Pty) Ltd and others
 4 All SA 474 (C)
Cape of Good Hope Provincial Division
13 April 2005
RB Cleaver J
C Webster and AD Maher
. Editor's Summary . Cases Referred to . Judgment .
 Competition Passing off Passing off is a wrong consisting of a false representation made by a trader to members of
the purchasing public that the enterprise, goods or services of a rival trader either belong to him or are connected, in the
course of trade, with his own enterprise, goods or services To be actionable, the passing off must erode the plaintiff's
 Trade marks Infringement of Applicants bore the onus of establishing their reputation in the mark Where
reputation could not be established passing off action fell to be dismissed.
The applicants and the first two respondents were all businesses whose names contained the word "Value". The
applicants sought a final interdict preventing the respondents from using the trademark "Value". The case related
essentially to an alleged passing off of the first respondent' services as those of the applicants.
Held Case law explains that passing off is a wrong consisting of a false representation made by a trader to
members of the purchasing public that the enterprise, goods or services of a rival trader either belong to him or are
connected, in the course of trade, with his own enterprise, goods or services. To be actionable, the passing off must
erode the plaintiff's goodwill. There are two basic requirements to be proved in such an action. The first is the
plaintiff's reputation in relation to the symbol which epitomises his product. The second requirement is deception or
confusion, on the part of a significant segment of the buying public, caused by the conduct of the defendant, as to
the origin of the product or a trade connection with the defendant, and which would likely have an influence on their
decision to procure it.
The main element in a plaintiff's goodwill is its reputation. Therefore, the applicants bore the onus of establishing
their reputation in the mark "Value" as at the relevant date. The issue was whether applicants had such a
reputation when the first respondent started his business in the relevant region. The Court found that the word
"value" performed a descriptive function in the name of each of the businesses in this case. It was not in any way
distinctive of either of the businesses, nor was it characteristic of the goods or services in respect of which it was
used. The evidence adduced by the applicants did not establish that a substantial number of people regarded the
word "value" as distinctive of the applicants' business.
In consequence of the above, the applicants were unable to establish their reputation relating to the use of the
word "value". There was also recourse for the applicants as far as trade mark infringement was concerned.
Consequently, the application was dismissed.
Page 475 of  4 All SA 474 (C)
For Trade Marks see:
· LAWSA First Reissue (Vol 29, paras 1306)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed. H N refers to
corresponding headnote number.)
Bata Ltd v Face Fashions CC and another 2001 (1) SA 844 (SCA)
BoswellWilkie Circus v Brian Boswell Circus (Pty) Ltd 1984 (1) SA 734 (N)
Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
1976 (2) SA 930 (A)
Capital Estate and General Agencies (Pty) Ltd and others v Holiday Inns
Inc and others 1977 (2) SA 916 (A)
Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd and
another  3 All SA 175 (1998 (3) SA 938) (SCA)