imitation of the applicant's getup and is designed to deceive and confuse. The respondent's product's getup
is similar to that of the applicant's product in the following respects:
(a)
a confusingly similar name;
(b)
a black bottle identical in colour to the applicant's bottle;
(c)
a green top identical in colour to the applicant's top;
(d)
the label affixed around the middle portion of the bottle bearing the name in white print on a black
background and surrounded in green precisely as the applicant's label;
(e)
the layout of the label is similar, the word "Bleach" appearing directly below the marks in a rectangular
surround, white print at the bottom of the label and instructions printed on both sides of the central
part of the label.
[35] There are differences, but they are minor and immaterial.
[36] It is furthermore significant that on both products the following words appear:
(a)
On applicant's label the words "active ingredient sodium hypochloride 3.5% rn/v when packed" appear.
(b)
At the bottom of the respondent's label the following words appear: "active ingredient: sodium
hypochloride".
It is common cause that the content of sodium hypochloride in the applicant's product is 3.5%, whereas that
of the respondent's product is 2.2%. The consumer is however not made aware of this fact.
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[37] The applicant's product bears the applicant's name on the label whereas the respondent's product is
anonymous. In my view therefore the respondent makes no attempt to make it clear to the consumer public
that its product is not that of the applicant's. That the respondent was obliged to do. See Blue Lion
Manufacturing (Pty) Ltd (supra) at 887DG:
"When one is concerned with alleged passingoff by imitation of getup, as is the case in the matter before us, one
postulates neither the very careful nor the very careless buyer, but an average purchaser, who has a general idea
in his mind's eye of what he means to get but not an exact and accurate representation of it. Nor will he
necessarily have the advantage of seeing the two products side by side. Nor will he be alerted to single out fine
points of distinction or definition. Nor even, as pointed out by Greenberg J (from whom I have been quoting) in
Crossfield & Son Ltd v Crystallizers Ltd 1925 WLD 216 at 220, will he have had the benefit of counsel's opinion
before going out to buy. Nor will he necessarily be able to read simple words, as there are distressingly many
people in South Africa who are illiterate.
[4] However, the law of passingoff is not designed to grant monopolies in successful getups. A certain measure
of copying is permissible. But the moment a party copies he is in danger and he escapes liability only if he makes
it 'perfectly clear' to the public that the articles which he is selling are not the other manufacturer's, but his own
articles, so that there is no probability of any ordinary purchaser being deceived:" (Emphasis supplied)
[38] I have already referred to the similarities in the getup adopted by the respondent. In my view it is inevitable
that it will cause deception and
View Parallel Citation
confusion, particularly if regard is had to the following:
(a)
Purchasers have a general idea of the product they wish to buy, but not an exact or accurate
representation of it. This imperfect perception and recollection means that where two getups are
materially similar, the minor differences are irrelevant and not perceived by the potential purchaser.
(b)
The potential purchaser will not necessarily have the two products side by side, and will select on a
general idea imperfectly recollected.
(c)
It is the dominant or main features of the getup which will be recalled and make an impact. The main
features of the respondent's getup are those that it has in common with the applicant's getup, namely
the black bottles, the green tops and labels containing the mark in white print on a black background
surrounded by green.
(d)
The purchasers will not be alerted to single out fine points of distinction or definition.
[39] In all the circumstances I am satisfied that the applicant is entitled to the relief claimed and I accordingly make
the following order:
39.1 Respondent is interdicted by itself or through its servants, agents or members from infringing the
applicant's rights acquired by trade mark registration no. 1956/01595 by using the mark ALL BLAX or
any other mark which so nearly resembles the trade mark as to be likely to deceive or cause confusion
in the course of trade in relation to bleach, in terms of section 34(1)(a) of the Trade Marks Act 194 of
1993.
39.2 Respondent is interdicted by itself or through its servants, agents or members from infringing applicant's
rights acquired by the trade
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