[30] The applicants use the abovementioned features as proof that together they make up the Adidas features of
the registered trade marks.
[31] Applicants' counsels argued that each of the relevant examples of the respondent's footwear bears a mark
comprising two or four stripes which is confusingly similar to the registered trade marks.
[32] The LPS Sport shoe reflected on annexure "TB8"
(a)
The shoe:
(i)
has four lateral stripes;
(ii)
the stripes are white and are superimposed on a blue background (accordingly, the colour of the
stripes contrasts with the colour of the background of the shoe);
(iii)
the stripes are parallel to each other;
(iv)
the stripes run substantially downwards and rearwards from the fastening of the shoe to the
sole;
(v)
the stripes are substantially equidistant from each other (with a slightly wider space between the
middle two stripes);
(vi)
the stripes are of the same width;
(vii)
the stripes are separated by spaces which are substantially equivalent to the width of the parallel
stripes (the middle space is slightly wider than a stripe).
(b)
The applicants allege the only difference between the stripe mark used on this shoe of the respondent's
and the registered trade marks is that the respondent's mark has one additional stripe. They claim that
the respondent used the registered trade marks and just added one stripe. The applicants also often
use on their shoes the 3stripe trade mark where the stripes have serrated edges and this is a further
feature which they claim, has been copied.
(c)
The respondent alleges that the stripes on this shoe are a "two plus two" combination of lateral
downward stripes which are not equally spaced or equidistant. The allegation is made that such stripes
cannot be confused with three equally spaced horizontal stripes of varying lengths which run parallel
and substantially at a right angle to the vertical, which is what the respondent alleges constitutes
registered trade mark 1995/12283. The respondent also distinguish the stripes on this shoe from
registered trade mark 2000/18582 on the basis that this shoe does not feature three equally spaced
equidistant parallel stripes.
[33] The men's ATH Leisure shoe depicted on Annexure "TB9"
Page 649 of [2012] 1 All SA 636 (WCC)
(a)
The shoe:
(i)
has four lateral stripes;
(ii)
the colour of the stripes contrasts with the colour of the background of the shoe;
(iii)
the stripes are parallel to each other;
(iv)
the stripes run substantially downwards and rearwards from the fastening of the shoe to the
sole;
(v)
the stripes are equidistant from each other;
(vi)
the stripes are of the same width;
(vii)
the stripes are separated by spaces approximately equivalent to their width.
(b)
The applicants allege the only difference between the stripe mark used on this shoe of the respondent
and the registered trade mark is that the respondent's mark has one additional stripe. They claim that
the respondent has used the registered trade marks and just added one stripe. The respondent has
again used the serrated edge to the stripes often used by the applicant.
(c)
The respondent alleges that the stripes on this shoe are a "two plus two" combination of lateral
downward stripes which are not equally spaced or equidistant. The allegation is made that such stripes
cannot be confused with three equally spaced horizontal stripes of varying lengths which run parallel
and substantially at a right angle to the vertical, which is what the respondent alleges constitutes
registered trade mark 1995/12283. The respondent also distinguishes the stripes on this shoe from