The appellant was a close corporation whose controlling member, a Mr Kenneth Gordon, was a shoe designer whoused his initials "KG" as his trade mark. "Kurt Geiger" was a trade mark used by the respondent in respect offootwear. That trade mark was registered in December 1990, whilst that of the appellant was registered inFebruary 2005.The respondent laid claim to the trade mark "KG", alleging that it had used the mark before the application dateof the appellant's trade marks. It, accordingly, approached the court below for an order for the expungement of theregistrations. In order to interdict the appellant from using the mark "KG", the respondent relied on trade markinfringement and on passing­off. The court below upheld the application on all three grounds, leading to thepresent appeal.In the expungement claim, the respondent's case was that it had used the trade mark for some years before theappellant applied for registration of its mark, and that it, accordingly, had a prior right to the mark. The appellantargued that the registrations were liable to be revoked under section 10(16) of the Trade Marks Act 194 of 1993,which provides that a mark may not be registered as a trade mark or, if registered, is liable to be removed from theregister if the registration of that mark is contrary to existing rights of the person who filed a later application forregistration of the same or similar mark.The trade mark infringement claim was based on two premises. The first related to the likelihood of deception andconfusion, and the second was that the use of any identical or confusingly similar registered trade mark cannotinfringe another registered mark.Page 285 of [2010] 2 All SA 284 (SCA)In the passing­off claim, the respondent contended that it could rely on passing­off to prevent the appellant fromusing the "KG" trade mark even if it were unable to have the trade marks expunged.Held ­ The first case to deal with passing off was that of Glenton and Mitchell v Ceylon Tea Company 1918 WLD 118.Having found that the applicant had established a prior reputation in the mark as registered, the Court concludedthat if a prima facie case was made out that the mark should not have been on the register, an interim interdictcould issue. In other words, registration is not a defence to a passing­off claim if the claimant for interim relief isable to show that the register ought to be rectified by the removal of the registration. The present Court supportedthat conclusion and held that a party who wishes to prevent another party from using the latter's registered trademark, has to establish a ground for revocation.The real issue between the parties was whether the respondent had, as at the date of the appellant'sapplications for registration, an existing right in the trade mark "KG" in class 25 for purposes of section 10(16) ofthe Act. During argument, the respondent conceded that it did not brand its footwear as "KG", using instead, thefull "Kurt Geiger" name in combination with the initials "KG". The Court, therefore, concluded that the scale and nature of the conjunctive use was such that no separate and distinct reputation arose in relation to "KG" simpliciter. The appeal was, accordingly, upheld and the respondent's application in the lower court dismissed in its entirety