respondent used the spelling that it did, which just happened to coincide with the spelling of the name Albex.
I do not believe that any reasonable person would associate the words All Blax as it appears on the
respondent's product with the New Zealand rugby team, as was suggested by the respondent.
[24] The applicant's trade mark Albex is not descriptive or common, but is invented. The respondent has two other
brands of bleach on the market, namely Famtex and Hamper. The respondent's selection of the similar
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sounding and looking mark All Blax, from all the possible words that it could have selected for its competing
product, in my view indicates that the respondent selected a confusingly similar mark with the intention and
for the purpose of deceiving potential purchasers into believing that the respondent's product is the
applicant's product. Whilst such an intention and purpose is not necessary to be established, it is a further
indication of the likelihood of deception and confusion. (See: Blue Lion Manufacturing (Pty) Ltd v National Brands
Ltd1 2001 (3) SA 884 (SCA).)
[25] In my view the respondent should be aware of the fact that the ordinary purchaser encounters goods in the
market with both imperfect perception and imperfect recollection. The selection of a mark as similar as the
applicant's registered trade mark, will in my view undoubtedly lead to confusion and deception as envisaged
in the Act.
[26] Accordingly I find that the applicant has established that the mark used by the respondent so nearly
resembles applicant's registered trade mark as to be likely to deceive or cause confusion.
Section 34(1)(c):
[27] In respect of the relief sought in terms of section 34(1)(c) of the Act, the respondent contends that inasmuch
as the applicant has failed to prove
View Parallel Citation
the requirements of section 34(1)(a), the applicant is precluded from obtaining relief in terms of section 34(1)
(c) of theAct. For this proposition Mr Jaga, who appeared for the respondent relied on the following dictum of
Smit, J in Triomed (Pty) Ltd v Beecham Group Plc and others2 2001 (2) SA 22 (T) at 555BE:
"It would appear, although not specifically stated in this section, that the purpose of this section is to prevent the
use of a wellknown mark in the Republic on goods other than those for which the mark is registered. It seems to
me that this subsection is not intended to protect a proprietor who cannot prove the requirements of section 34(1)
(a) or 34(1)(b) of the Act in respect of the same or similar groups, as those for which a trade mark is registered."
[28] Section 34(1)(c) provides as follows:
(1) The rights acquired by registration of a trade mark shall be infringed by
"34
(c)
the unauthorised use in the course of trade in relation to any goods or services of a mark which is identical
or similar to a trade mark registered, if such trade mark is well known in the Republic and the use of the
said mark would be likely to take unfair advantage of, or be detrimental to, the distinctive character or the
repute of the registered trade mark, notwithstanding the absence of confusion or deception: Provided that
the provisions of this paragraph shall not apply to a trade mark referred to in section 70(2)."
[29] It is clear that section 34(1)(a) quoted in paragraph [11] above, applies to all registered trade marks.
[30] Section 34(1)(c) gives additional protection to a wellknown trade mark. The additional protection is against
the use of a competing mark which
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would be likely to take unfair advantage or be detrimental to the distinctive character or the repute of the
registered trade mark notwithstanding the absence of confusion or deception.
[31] In my view to argue that the proprietor of a wellknown trade mark who cannot prove that the competing
trade mark is "likely to deceive or cause confusion" as required by section 34(1)(a) cannot rely on Section
34(1)(c) is to ignore the wording of section 34(1)(c) which specifically provides that it applies "notwithstanding
the absence of confusion or deception". To argue further that section 34(1)(c) applies only to goods or
services other than those in respect of which the mark is registered, is in conflict with the express wording of
the section which refers to unauthorised use in trade in relation to any goods or services. Such interpretation
will also lead to the absurdity that the proprietor of a wellknown mark has less protection in regard to the
goods for which the mark is registered than it has in respect of goods for which it is not registered.
[32] In the circumstances I cannot agree with the aforementioned dictum of Smit, J which, in any event, is obiter.
[33] In the circumstances I am satisfied that the applicant has established grounds for the interdict sought in
terms of section 34(1)(c) of the Act.
Passing off:
[34] The getup of the respondent's product is in my view an obvious
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