Page 662 of [2012] 1 All SA 636 (WCC)
[66] The test in passingoff cases involves the likelihood that the similarity of another's getup may mislead the
public. The whole getup of the plaintiff on the one hand and the respondent on the other must be compared,
(see Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 240DE [also
reported at [1957] 1 All SA 123 (C) Ed] and Adcock Ingram Products Ltd v Beecham SA (Pty) Ltd (supra) at
439AB).
[67] To determine whether there is a likelihood of a passingoff occurring, the court must notionally transport itself
from the court room to the particular market place and place itself in the position of those who might be
expected to buy the competitors' products, (see Oude Meester Groep Bpk and another v SA Breweries Ltd; SA
Breweries Ltd and another v Distillers Corporation (SA) Ltd and another 1973 (4) SA 145 (W) [also reported at
[1973] 4 All SA 241 (W) Ed]).
[68] In determining whether or not there is a likelihood of there being a passingoff by the respondent of its goods
as those of the applicant or as being connected in the course of trade with those of the applicant; the Court
said the following in Klisser's Farmhouse Ltd v Harvest Bakeries Ltd 1989 RPC 27 at 29:
"The opinions of trade and other witnesses as to what would be likely may be helpful, but in the end it is the judge,
applying the right principles, who has to answer the question."
[69] As Harms AJA put it in Reckitt and Colman SA (Pty) Ltd v SC Johnson and Son SA (Pty) Ltd 1993 (2) SA 307 (A) at
315D.
". . . the judgment of the Court must not be surrendered to any witness."
IX The applicants' reputation in the getups (including the 3stripe mark) of the Tuscany, 2006 Predator and
Superstar shoes
[70] The applicant's evidence of the reputation in the 3stripe mark of the Tuscany, 2006 Predator and Superstar
shoes are not challenged by the respondent.
[71] The respondent alleges, though, that the features of the getups relied on by the applicants are generic,
commonplace and, in certain instances, functional.
X The respondent's alleged misrepresentation: the getups of the respondent's shoes compared with those of
the applicants
[72] Applicants submitted that the respondent's shoes referred to above use all of the features of the 3stripe
trade mark except for the removal or the addition of one stripe. The applicants allege that the respondent's
shoes also make use of the getups of the Adidas shoes relied on for the purposes of passingoff which get
ups include the 3stripe trade mark. Applicants allege that this has the result that consumers are likely to
think that the respondent's shoes are Adidas shoes or are endorsed by, or otherwise connected to, Adidas.
Applicants allege that the use by the respondent of the getups is due to the similarity between those get
ups and the getups of the applicants' footwear, which is likely to deceive, cause confusion and take unfair
advantage of the repute of the first and second applicants.
Page 663 of [2012] 1 All SA 636 (WCC)
[73] The respondent's Men's ATH Leisure shoe (Annexure "TB9") and Annexure "AA17" compared to the Adidas
Tuscany shoe Annexures "TB54" and "TB56."
TB56
(a)
The Tuscany shoe has established itself as a wellknown and popular shoe with distinctive and
innovative design features, namely, the tread pattern on the outsole, the wrapping up of the sole onto
the upper in the forefoot and heel areas, and the stitching pattern on the upper.
(b)
The respondent's Men's ATH leisure shoe is a white shoe with dark stripes on it. The shoe has four
lateral stripes. The colour of the stripes differs from the colour of the shoe on which they are affixed.
The stripes are parallel to each other. The stripes run substantially downwards and backwards from the
fastening of the shoe to the sole. They are equidistant from each other. They are of the same width.
They are separated by spaces approximately equivalent to their width. They run obliquely in a direction
towards the heel of the shoe, if looked at from the top. They have a heel patch of a different colour to