Section 34(1)(a) is the traditional identical/similar goods/likelihood of confusion infringement test, whereas Section 34(1)(c) is the dilution or unfair advantage/detriment to distinctive character or repute infringement test.
Pretorius J held that it was common cause that the OMO trade mark enjoyed a substantial reputation in South Africa. Interestingly, despite the reputation in the OMO mark, Unilever decided not to pursue a ground based on passing off. Afro-IP suspects a number of reasons for the omission which could include Unilever's confidence in their registered rights and the cost associated with preparing for an additional ground. In any event, their sniper-like approach paid off.
Douglas J held, correctly in Afro-IP's view, that "both OMO and FOAM-O are aurally similar in sound and both are washing powders. It is clear that the respondent has pitched the product at the lower end of the market. To my mind it exacerbates the problem as unsophisticated, uneducated and rural people will be more prone to confusion than the upper end of the market. It is also more likely that these customers at the lower end of the market will be confused or deceived due to the reputation that OMO has as a washing powder amongst ordinary customers". As a consequence Salma infringed under Section 34(1)(a).