Jeremy Speres has pointed out that the appeal decision on the matter between Swartkops and Cerebos was handed down on 10 May 2013.
Swartkops' appeal succeeded (read the judgement here). Commenting on the appeal decision, Jeremy writes that its most striking aspect 'is the full bench's criticism of the court a quo for undertaking a detailed comparison of the get-up of the products in question, rather than relying on the first and general impression of the products alone. The court a quo justified its approach in para 26 by stating:
"In my view, in order for a Court to make an appropriate and correct finding, it must undertake such an exercise keeping in mind, of course, the relevant importance of the first and general impression. If a Court does not undertake that exercise and relies solely on a first and general impression, it runs the risk of failing to distinguish between unlawful passing off and lawful competition."
The court a quo relied on the approach of Harms JA in the Reckitt & Colman case, where Judge Harms said the following at pg 317:
"In assessing whether there is a likelihood of deception or confusion it is necessary to consider the whole get-up of the appellant and the whole get-up of the respondent…but it is difficult to do this exercise without having regard to its individual parts."
The full bench seems to have over-emphasised the requirement to consider get-ups as wholes and simply identified certain broad elements that appeared on both products, i.e. the similarities – see para 17. It’s refusal to consider the individual elements of each get-up, as per the court a quo, led to a failure to consider the significant dissimilarities and therefore to a conclusion that confusion was likely. I’m not sure the court gave consumers enough credit here - I’d like to think I’m sufficiently conscious to distinguish between these two!'
Which of the two decisions do Afro-IP readers agree with?