cylindrical, one cannot object to the addition of the other drawings depicting the side, bottom and top views.
The respondent, disingenuously I would suggest, sought to introduce a number of innovative features as
possible configurations of those parts of the container which cannot be viewed by simply looking at the
presentation. Drawings of these possibilities appear as "DJ2" and "DJ3" at pp 14 and 15 of the record.
Page 130 of [1997] 3 All SA 125 (T)
Annexure X
Page 131 of [1997] 3 All SA 125 (T)
Although it remains a possibility I find it difficult to believe that any person would want to believe that the side
on view of the container would look anything like drawing no 1 on "DJ2". If it looked like the object depicted on
drawing no 2 one would ask oneself why those features would have been concealed, since they would qualify, by
their very design, as distinguishing features. The elaborately designed fliptop lid and hinge, (drawing 3) would
similarly have constituted an important attribute, and again one would have expected such an intricate and rather
novel component to have been displayed prominently, as a distinguishing feature. As far as drawing 4 on p 15 is
concerned, the form proposed by the respondent, clearly in no way resembles the registered mark as depicted on
"DJ1". What is depicted on "DJ1" is an obviously cylindrical container as opposed to the square container shown on
drawing 4, "DJ4".
Even though the other aspects or planes of the container are not portrayed in the representation of the mark, if
it is accepted that the container is circular, as one must, having regard to the view presented, it cannot be argued
as was done in the Cointreau case, that the registration relates only to the aspect depicted. One would be entitled
to find, as a probability, that there are no other distinctive features, particularly not such as those portrayed by the
respondent. By not showing the "other side" of the container, the proprietor conveyed to any person looking at the
register and the registered trade mark that there is nothing to show; it looks exactly like the "side" one sees, that
which is displayed.
I have no doubt and no hesitation in finding that the arresting features as displayed in the original registration
have been retained in the drawings now submitted, and that the identity of the trade mark has not been
substantially affected within the meaning of section 34 of the Act. The deponent to the respondent's affidavits
furthermore alleges that there appears to be certain differences between the registered and the amended
representations. In having regard to the copies now supplied, being exhibits "Z" and "X", I am not entirely satisfied
that the differences complained of actually exist. The only apparent difference appears to be the absence of the rim