Clipsal Australia (Pty) Ltd and another v Trust Electrical Wholesalers and Another
 4 All SA 1082 (SCA)
Supreme Court of Appeal
23 March 2007
LTC Harms ADP, PE Streicher, TD Cloete, CH Lewis and A Cachalia
2009 (3) SA 292 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
Intellectual property law Design Alleged infringement of registered design Test for infringement of design similar to
patent infringement test.
The appellants, as proprietor of a registered design and the local exclusive licensee, sought relief against the
respondents on the ground that they were infringing their design registration. The court a quo dismissed the
application with costs on the ground that the design had not been validly registered because it was not new or
original. It also held that the design in any event had not been infringed. The present appeal was noted.
Held The design was registered under the Designs Act 195 of 1993 as an aesthetic design in class 13, which
covers equipment for the production, distribution or transformation of electricity. The Act draws a distinction
between aesthetic and functional designs.
Examining the evidence regarding the nature of the design, the Court found that the court a quo had erred in
finding that the design lacked novelty.
The next question was that of infringement. That involved a determination of whether the respondents' products
embodied the registered design or a design not substantially different from the registered design. The test is not a
trade mark infringement test and the issue was not whether or not there was confusion or deception. It would
therefore be wrong to introduce concepts developed in a trade mark context such as imperfect recollection into this
part of the law. The designs test is closer to the patent infringement test.
The differences between the parties' designs were insubstantial, and the appeal was accordingly upheld.
For Design see:
. LAWSA Second Edition (Vol 8(1), paras 187298)
Cases referred to in judgment
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)
Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd
1984 (3) SA 681 (AD)
Page 1083 of  4 All SA 1082 (SCA)
KimberlyClark of SA (Pty) Ltd (formerly Carlton Paper of SA (Pty) Ltd) v
Proctor & Gamble SA (Pty) Ltd  3 All SA 77 (SCA)
Letraset Ltd v Helios Ltd 1972 (3) SA 245 (AD)
Robinson v D Cooper Corporation of SA (Pty) Ltd 1984 (3) SA 699 (A)
Schultz v Butt 1986 (3) SA 667 (AD)
Malleys Ltd v JW Tomlin (Pty) Ltd (1994) 180 CLR 120
Amp Inc v Utilux (Pty) Ltd 1972 RPC 103 (HL)
AsproNicholas Ltd's Design Application  RPC 645