the shoe. The tongue has a device on it that is of a different colour to the shoe. The device is an oval
lying on its side with an "X" in white in the middle. The parallel stripes and the heel patch are black. The
shoe is otherwise white in colour. The parallel stripes on the side of the shoe are serrated. The shoe
has a stitching pattern on the upper and a tread pattern on the outsole. The insole of the shoe bears
the name "Xtreme Sports".
(c)
The applicant allege the Men's ATH leisure shoe displays a stripe mark that is identical in appearance
and location to Adidas's 3stripe trade mark, save for the addition of one stripe. The Men's ATH shoe
has a number of other features that are identical to the Tuscany shoe including, amongst others:
.
identical stitching patterns (as to configuration, colouration and placement) on the shoe upper;
.
identical extended sole feature on the back of the shoe;
Page 664 of [2012] 1 All SA 636 (WCC)
(d)
.
identical side soles with exactly the same raised rubber indentation in the same places; and
.
the outsole (including the tread pattern) is identical to the outsole of the Tuscany shoe.
The respondent relies on the fact that its Men's ATH leisure shoe (Annexure "TB9") do not bear the
Goodyear trade mark and Goodyear device which appear on the applicants' Tuscany shoe.
[74] The stitching pattern, colour, sole feature on the back, sole rubber and indentation, outsole are not exclusive
to the products.
[75] The respondent's soccer boot Annexure "TB10" and the respondent's Boys ATH Leisure shoe, Annexure
"TB11" compared to the Adidas 2006 Predator boot and Annexures "TB57" and "TB58"
(a)
The 2006 predator boots have established themselves as wellknown and popular football boots with
distinctive and innovative design features.
(b)
(i)
The respondent's soccer boot is blue and white in colour. It has four lateral stripes commencing
on the upper of the shoe. 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 top of the shoe to the sole. The stripes run obliquely towards the heel of
the shoe on the instep of the shoe. On the outstep of the shoe, the stripes initially run obliquely
towards the heel of the shoe but, approximately threequarters towards the end, curve down
towards the sole. The stripes are the same width. The shoe has no other indication of origin on
the outer. The shoe's asymmetrical tongue design, the shape of the heel piece on the upper and
the stitching lines and other aesthetic markings on the upper should also be noted.
(ii)
The respondent's Boys ATH leisure shoe is gold and white in colour. It has four lateral stripes
commencing on the upper of the shoe. 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 rearwards from the top of the shoe to the sole. The stripes run obliquely towards
the heel of the shoe on the instep of the shoe. On the outstep of the shoe, the stripes initially run
obliquely towards the heel of the shoe but, approximately threequarters towards the end, curve
down towards the sole. The stripes are the same width. The shoe has no other indication of origin
on the outer. The insole bears the name "Xtreme Sports" which applicants allege is a kind of
activity, not a badge of origin. The asymmetrical tongue design, the shape of the heel piece on
the upper and the stitching lines and other aesthetic markings on the upper should also be noted.
Page 665 of [2012] 1 All SA 636 (WCC)
(c)
(i)
(ii)
The respondent's soccer boot displays a stripe mark in substantially the same position as the first
applicant's 3stripe trade mark. The difference is that there is an additional stripe on the
respondent's shoe. In addition, the soccer boot has a number of features that are identical to the
2006 Predator boot including, amongst others:
.
A substantially similar heel design;
.
A substantially similar asymmetrical lacing design;
.
Substantially similar marking on the upper of the shoe; and
.
Substantially similar stitching patterns and placements on the upper of the shoe.
The applicants allege the respondent's Boys ATH leisure shoe is virtually identical to the 2006
Predator boot. It prominently displays a stripe mark in substantially the same position as the first
applicant's 3stripe trade mark. The difference is that there is an additional stripe on the
respondent's shoe. In addition, the Boys ATH leisure shoe has a number of other features that
are identical to the 2006 Predator boot including, amongst others:
.
a substantially similar heel design;
.
a substantially similar asymmetrical lacing design;
.
substantially similar markings on the upper of the shoe; and
.
substantially similar stitching patterns and placements on the upper of the shoe.
[76] The heel design asymmetrical lacing design, markings on the shoe upper, stitching patterns and placements
on the upper do not form part of the exclusive features of the applicants' products.