Mr Levy, a pharmacist, to a large extent supported the evidence of Van Oudtshoorn and in particular Levy testified
that he would not be able to identify the type of pharmaceutical that was represented in the trade mark in question
by shape alone. This evidence of Levy was unchallenged.
Since approximately 1975 another manufacturer, Eli Lilly, used the same elliptically shaped tablet for a penicillin
antibiotic as the trade mark in question. Van Oudtshoorn had good reason to recall the Eli Lilly tablet and he
testified that the shape of the Augmentin tablet is the same as the shape of the Eli Lilly tablet. It seems to me Mr
Faber's statement in his affidavit on behalf of the respondents, that certain other oval or elliptical shaped tablets
which have been on the market are not of the same shape as the Augmentin shape cannot be sustained.
The evidence tendered on behalf of applicant, in my view, clearly establishes that the shape and configuration of
the trade mark in question was in common use by other pharmaceutical manufacturers, including manufacturers of
antibiotics. In my view the applicant's evidence of concurrent use by other pharmaceutical manufacturers of an
ellipticalshaped tablet of the same or similar shape as the trade mark in question is inconsistent with the notion
that the trade mark in question
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is capable of distinguishing the pharmaceutical products of the first respondent from those of other pharmaceutical
manufacturers.
In the evidence I have been referred to clear reference is made to the fact that several other antibiotics and
other pharmaceutical products exist, which indicate that the shape and configuration of the trade mark in question
was in common use by other pharmaceutical manufacturers. The fact of the existence of these various tablets is
consistent with the evidence of Van Oudtshoorn that the trade mark in question is customarily found in the
pharmaceutical industry.
In several affidavits from pharmacists, filed on behalf of the respondents, it was stated that the pharmacists
recognise the shape of the Augmentin tablet. In my view, however, that is not the issue. Respondents seek to
equate this recognition and familiarity with the Augmentin tablet with distinctiveness of the trade mark in question.
The fallacy of this submission is borne out by the fact that recognition of a widely sold pharmaceutical product does
not mean that the
Page 136 of [2001] 2 All SA 126 (T)
person concerned recognises the particular shape of that particular product as a trade mark or that the shape of
the particular product is fulfilling the purpose of a trade mark. In my view this evidence produced on behalf of
respondents does not show that the trade mark in question as represented was regarded as having trade mark
significance.
Respondents, in an attempt to prove that the trade mark in question had become capable of distinguishing
through use, relied upon a market survey conducted by Heidi Brauer. The results of the survey have been
introduced in evidence. The applicant has not conducted its own market survey but has contented itself with
criticising the methodology adopted.
The question of market survey evidence and the development of the law in relation to market survey evidence
have been considered and dealt with extensively. (See: Hoechst Pharmaceuticals (Pty) Ltd v The Beauty Box (Pty) Ltd
(In Liquidation) and another 1987 (2) SA 600 (A); Philip Morris Inc and another v Marlboro Shirt Co SA Ltd and another
1 9 9 1 ( 2 ) S A 7 2 0 ( A ) a n d McDonald's Corporation v Joburgers DriveInn Restaurant (Pty) Ltd and another4
1997 (1) SA 1 (A)).
In the Hoechst Pharmaceuticals case (supra) Nicholas AJA (as he then was) defined the problems relating to
market survey evidence thus at 617C:
"There are two problems associated with such surveys: the problem of getting the evidence before the Court (the
problem of admissibility); and the problem of the value of the survey, having regard to the way in which it was conducted
(the problem of weight)."
It was on this second issue mainly, that applicant attacked the reliability of the survey in the present case. Brauer
stated in her affidavit that she received her instructions thus:
"I was informed that the objectives of the study were to establish that the appearance of the Respondents' Augmentin
375 mg tablets is distinctive in the sense that the relevant market recognises the product with reference to its
appearances including its shape."
The question posed to the interviewers was: "Can you please tell me the name of this antibiotic?" From the results
it appears that 4% of the
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pharmacists correctly identified the tablets in question as being Augmentin while approximately 80% incorrectly
identified Augmaxcil tablets as being Augmentin tablets.
Prof DJ Stoker, on behalf of the applicants, criticised the survey and the methodology adopted on several
grounds. In the view which I take of the question asked of the interviewers it is not necessary to consider all the
grounds of criticism raised by Stoker. In my view the survey was conducted, by means of the question posed, in