as shown in the representation" on a black and white photograph. Due to the poor quality of the photograph I
prefer to use a drawing of an Augmentin tablet to illustrate the trade mark. No regard should be had to the
dimensions indicated.
The exact description of the shape of the tablet was the subject of much evidence but it would not be unfair to
state that the tablet is biconvex with a regular oval (ie elliptical and not egglike) shape. Beecham's package
insert calls it "oval" and the draughtsman of the drawing above
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refers to the tablet as oval and the tablet shape as convex. It is not without significance to note that the mark
is not limited by either colour or size.
[5]
Any interested person may apply to court for the removal of an entry wrongly made in or wrongly remaining on
the Trade Mark register. 7 Triomed, as an interested party, sought relief under this provision with reference to
a number of grounds to be found in section 10 of the Act:
"The following marks . . . if registered, shall . . . be liable to be removed from the register:
(1) A mark which does not constitute a trade mark;
(2) a mark which
(a) is not capable of distinguishing within the meaning of section 9; or
(b) consists exclusively of a sign or an indication which may serve, in trade, to designate the kind . . . or other
characteristics of the goods or services . . .; or
(c) consists exclusively of a sign or an indication which has become customary in the current language or in the
bona fide and established practices of the trade;
. . .
(5) a mark which consists exclusively of the shape, configuration, colour or pattern of goods where such shape,
configuration, colour or pattern is necessary to obtain a specific technical result, or results from the nature of
the goods themselves;
Page 197 of [2002] 4 All SA 193 (SCA)
. . .
(11)a mark which consists of a container for goods or the shape, configuration, colour or pattern of goods, where
the registration of such mark is or has become likely to limit the development of any art or industry;
. . .
Provided that a mark shall not be refused registration by virtue of the provisions of paragraph (2) or, if registered,
shall not be liable to be removed from the register by virtue of the said provisions if at the date of the application
for registration or at the date of an application for removal from the register, as the case may be, it has in fact
become capable of distinguishing within the meaning of section 9 as a result of use made of the mark."
[6]
Smit J, in a comprehensive judgment, dealt with all the grounds raised and upheld all Triomed's contentions
although they were separate and distinct grounds of objection. He gave the impression (at 544IJ) that he had
regard to their cumulative effect but it is clear from the judgment as a whole that he dealt with each ground
separately. In any event, more often than not the evidence on one ground was relevant in relation to another
ground. In view of my conclusion that the appeal stands to be dismissed, I do not intend to canvass the whole
area as did the learned Judge but my failure to deal with any particular issue should not be seen as either
approval or disapproval of his judgment.
[7]
The learned Judge8 relied heavily upon the judgment of Aldous LJ in Philips Electronics NV v Remington
Consumer Products Ltd [1999] RPC 809 (CA), herein called "Philips II". It was an appeal from Philips I. Philips
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