[98] When the Court in the Van der Walt case (supra) found:
". . . that people who are likely to buy the goods in question are not endowed with special powers of perception or
recollection which could serve to lessen the probability of deception or confusion,"
it was effectively assuming, on the probabilities, that the South African public lacked the requisite powers to
perceive or recollect that the offending goods are not those of the applicant.
[99] When the Court in the Plascon Evans case found that: ". . . the ordinary purchaser may encounter goods,
bearing the defendant's mark. . . ," with an imperfect recollection of the registered mark it clearly did not have
the benefit of the extensive evidence before me of how wellknown and
Page 671 of [2012] 1 All SA 636 (WCC)
widely advertised and promoted the trade mark is. Respondent accepts this evidence of the applicants as
being correct.
[100] Since the Adidas 3stripe mark has not only been advertised by means of the sale of Adidas products in South
Africa, but also by means of promotion at sport events and in movies screened in South African cinemas and
on television, there can be little doubt that the average South African consumer of applicants' goods would be
sufficiently discerning to distinguish applicants' trade mark from the 2 and 4 stripe combinations on shoes of
respondent because South African consumers associate international branded shoes with a higher price
category than shoes that are branded by South African companies thereby making allowance for import duties
and related costs. As alleged by respondent, its customers know that it's stores do not sell applicants' shoes
and that respondent's shoes target a lower socioeconomic bracket of customers who expect to pay less for
respondent's shoes than they expect to pay for applicants' shoes. Respondent's shoes also have a trade
mark or brand name of respondent on them albeit not always immediately visible without opening the tongue.
[101] Applicant's argument that their shoes are sold in South Africa to a lowersocio economic group of consumers
as well who aspire to wearing their footwear may well be correct.
[102] It is, however, not correct to suggest that those consumers are not able to distinguish applicants' shoes from
those of respondents where the latter sells their shoes for a lesser price with features different to that of
applicants' shoes, namely 2 or 4 stripes with a device, name or brand label different to that of applicants.
[103] The applicants ask this Court to find that the shoes of the respondent bearing 2 or 4 stripes combinations
that are parallel, of equal width and spaced equally and of a different colour to the shoe on which they are
placed are so confusingly similar to or so nearly resembles applicants' 3stripe trade mark as to cause
confusion.
[104] As in the case of Sparletta (Pty) Ltd v Namibia Breweries Ltd 1991 NR 384 (HC), the fallacy in this argument of
applicants in casu, is "the underlying assumption that the applicant has a monopoly" in stripes of equal width
and distance and of a different colour to its surface, on shoes, irrespective of whether they are 3stripes or
not.
[105] The mark that applicants set out to register and in fact registered encompasses 3stripes only. It did not seek
to register any combination of 2 or 4 stripes.
[106] Accordingly, I am of the view that the shoes of the respondent bearing 2 and 4 stripes combinations do not so
nearly resemble the 3stripe trade mark of the applicants as to be likely to deceive or cause confusion.
[107] Application of the law to the facts in respect of passingoff
(a)
The applicants' allegation on this aspect is that the respondent is passing off certain of its shoes as
being those of the applicants or as being in some way connected with the applicants by using the get
ups of the applicants' footwear.
Page 672 of [2012] 1 All SA 636 (WCC)
(b)
The use of the registered mark, the name Adidas and its device are undisputedly distinctive of
applicants' footwear. The getup features that applicants claim are distinctive of its footwear are
challenged by respondent on the basis that they are generic and occur commonly in the footwear
market. Those getup features are as follows:
1.
Parallel, lateral stripes of a different colour to that of the dominant colour of the shoe;
2.
Such stripes are of equal width and equidistant from each other;
3.
Such stripes are on both sides of the shoe;
4.
Such stripes run from the position where the shoe fastens down to the sole and towards the
heel;
5.
The spaces between the stripes are approximately of equal width to the stripes;
6.
The heel patches are of a different colour to the main part of the shoe;
7.
The stripes have serrated edges;
8.
The toe area is covered by a rubber shell;
9.
The sole is patterned;
10.
The shoe has visible stitching patterns;
11.
There is a device of a different colour to the heel patch.