apposite:
"It must be stressed that a pharmacist may not dispense these tablets without a prescription. Therefore, our enquiry
as to whether confusion could arise will have to start with the medical practitioner. We must assume that these
practitioners will perform their duties in accordance with the precepts of their profession in a manner in which a
reasonably competent practitioner would do.
We must accept that such a practitioner prescribes a particular medicine for his patient not merely, if at all, because
of its origin, but because of its contents and its pharmacological action. The practitioner decides what in his judgment
his patient requires for the particular condition he has found to exist, at the same time having regard to the full
activity of the prescribed preparation. The practitioner is thus not concerned so much with the origin of a particular
medication as with its composition. The practitioner will satisfy himself that what he prescribes is the substance or
mixture of substances which he deems efficacious in the circumstances. In case of doubt he will no doubt study the
pharmacological data supplied by the supplier. From this it follows that the practitioner's prescription is a definitive,
deliberate act: he is aware of exactly what he is prescribing, and, in view of the harmful effects which continued use
of these particular tablets can have . . . any doctor who is requested to give a repeat prescription will consider afresh
the implication
Page 150 of [2001] 2 All SA 126 (T)
of his prescription and will, it is to be expected, consult his patient's record. . . . I am satisfied that no
View Parallel Citation
practitioner (unless he is careless or incompetent) will prescribe a medication such as the one with which we are
concerned by merely relying on a vague recollection of the product.
I now consider the pharmacist. I have repeatedly stressed that the pharmacist cannot sell these tablets without being
in possession of a prescription. He will know of the dangers involved in the use of these tablets and if there is any
doubt as to what the prescription is the pharmacist will refer to his script or check with the doctor .
Turning to the 'patient market', I am not convinced that the appellant has shown that it has acquired a reputation in
this market. But, even if it has, it cannot avail the appellant at all. The appellant cannot rely thereon nor can it even
succeed in establishing that confusion could arise between its product and that of the respondent, for the simple
reason that any reputation it may have acquired is to no purpose at all. The patient may well know that the product
he has been using is 'Stopayne', he may know that it emanates from some particular source he may even know that
it is a product from the appellant's laboratories, but he can make no use of such information. The patient cannot go to
his chemist and insist on being supplied with 'Stopayne'. He must first go to the doctor and even here he cannot
insist upon being prescribed 'Stopayne'. It is the doctor's responsibility as to what the patient should have, and his
alone. It follows that the only sphere in which confusion could arise is on the prescription by the medical practitioner,
and that probability I have already eliminated."
Much reliance was placed by respondents during argument on the judgment of Botha J (as he then was) in the case
of Organon Laboratories Ltd v Roche Products (Pty) Ltd 1976 (1) SA 195 (T). However, it seems to me that the facts in
that matter are clearly distinguishable from the facts in the present case. The facts, in that matter considered by
Botha J, indicated that the particular product was not necessarily prescribed by a doctor and dispensed by a
pharmacist.
In so far as the Augmentin word mark is concerned the issue, on the question of alleged infringement, is whether
the applicant's Augmaxcil trade mark so nearly resembles the registered mark as to be likely to deceive or cause
confusion. A comparison must be made, through the eyes of the notional customer, between Augmentin on the one
hand and Augmaxcil on the other the notional customer in this case being the medical practitioner who prescribes
the pharmaceutical product and the pharmacist who dispenses it and not the patient.
In my view there is no evidence to indicate that any medical practitioner or pharmacist would confuse Augmentin
with Augmaxcil. The two marks, in my judgment, are so different in appearance, sense and sound that there is no
reasonable probability or even possibility of any confusion or deception between Augmentin and Augmaxcil.
The respondents also rely on evidence indicating specific instances of alleged actual confusion. I deal first with
the allegations set out in the affidavit of Dorothea Heyns, a senior sales representative of third respondent. The
allegations made by Heyns are clearly of a hearsay nature and no supporting or explanatory affidavits have been
delivered. There is consequently no evidence from any person that he or she was confused and that such confusion
was attributable to the word mark
View Parallel Citation
Augmaxcil and that the socalled mistake was due to any alleged similarity between Augmentin and Augmaxcil.
Page 151 of [2001] 2 All SA 126 (T)
Considerable reliance was placed by respondents on the affidavits and evidence of Mr J Higgo and Ms M Thom.
Higgo, a senior representative employed by third respondent deposed to his affidavit on 8 May 2000 and stated
that on 3 May 2000 one Heleen, a dispenser for Dr Ina de Beer informed him by telephone that Druggists
Distributors had delivered Augmaxcil 375 mg tablets instead of Augmentin 375 mg tablets which had been ordered.
His affidavit continues to state that he checked his order book to confirm that Dr De Beer had in fact ordered
Augmentin and attached a copy of his order form. During his evidence Higgo testified that the order book was his
own personal book from which he prepared weekly reports of sales for the third respondent. He was, however,