registered trade mark 2000/18582 on the basis that this shoe does not feature three equally spaced
equidistant parallel stripes.
[34] The soccer boot depicted on Annexure "TB10"
(a)
This boot:
(i)
has four lateral stripes commencing on the upper of the shoe;
(ii)
the colour of the stripes contrasts with the colour of the background of the boot;
(iii)
the stripes are parallel to each other;
(iv)
the stripes run downwards and backwards from the fastening of the shoe to the sole (on the
outstep of the shoe, the stripes initially run downwards and backwards obliquely towards the
heel of the shoe but, approximately three quarters towards the end, curve down towards the
sole);
(v)
the stripes are equidistant from each other;
(vi)
the stripes are the same width;
(vii)
the stripes are separated by spaces approximately equivalent to their width.
Page 650 of [2012] 1 All SA 636 (WCC)
(b)
The applicants allege the only difference between the stripe mark used on this boot and the registered
trade marks is that the respondent's mark has one additional stripe. They claim that the respondent
has used the registered trade marks and just added on stripe.
(c)
The respondent says the following in regard to its soccer boot:
"the boot features a two pair 2 stripe combination (4 stripes in all) and not 3 stripes. The combination of stripes
is neither equidistant nor parallel and is not of equal width. The stripes expand in width, taper and are
boomerang stripes."
(d)
The respondent alleges that these features differ significantly from the features of the registered trade
marks. The respondent also distinguishes the stripes on its soccer boot from registered trade marks
1995/12283 and 2000/18582 on the same basis as it distinguishes its other shoes from these trade
marks.
[35] The Boys ATH Leisure shoe depicted on Annexure "TB11"
(a)
This shoe:
(i)
has four lateral stripes;
(ii)
the colour of the stripes contrasts with the colour of the background of the shoe;
(iii)
the stripes are parallel to each other;
(iv)
the stripes run substantially downwards and backwards from the fastening of the shoe to the
sole (the stripes run obliquely towards the heel of the shoe on the instep of the shoe, however,
on the outstep of the shoe, the stripes initially run obliquely towards the heel of the shoe but,
approximately three quarters towards the end, curve down towards the sole);
(v)
the stripes are equidistant from each other;
(vi)
the stripes are the same width;
(vii)
the stripes are separated by spaces approximately equivalent to their width.
(b)
The applicants allege the only difference between the stripe mark used on this shoe and the registered
trade marks is that the respondent's mark has one additional stripe. They claim that the respondent
has used the registered trade marks and just added one stripe.
(c)
The respondent points to the same features of the stripes on this shoe as is it did when distinguishing
the stripes on the respondent's soccer boot from the registered trade mark.
[36] The Hang Ten shoe depicted on Annexure "TB12"
(a)
The shoe:
(i)
has two lateral stripes;
(ii)
the colour of the stripes contrasts with the colour of the background of the shoe;
(iii)
the stripes are parallel to each other;
(iv)
the stripes run substantially downwards and rearwards from the fastening of the shoe to the
sole;
Page 651 of [2012] 1 All SA 636 (WCC)
(b)
(v)
the stripes are the same width;
(vi)
the stripes are separated by a space approximately equivalent to their width (the space is slightly
wider than the width of the stripes);
The applicants allege the only difference between the stripe mark used on this shoe and the registered