- the use of a link to enhance the site eg make it richer or more accessible and user friendly does not necessarily imply trade mark use affecting one of the functions of the trade mark. Consider a blog portal listing other blog portals by name or the comparator website, for example. The link enhances the sites but does this imply a link between the portals. Could the link simply not imply that the blogger or comparator has gone to the trouble of linking to another blog or site? Could it not be that the CAR FIND link enhances the site simply because it makes it easier to recognise the services provided through that link?
- the relevance of "enhancement" is perhaps more appropriate to whether there is an advantage to using the trade mark and whether this advantage is unfair. However, this is a factor under the dilution provisions and not S34(1)(a) infringement.
- what is there to imply some sort of link between the websites? If the trade mark simply points to the site of that other party, why would it necessarily create a link between the aggregator and the services on that site, especially if competitor sites are also referenced. Is there not an also an argument that the dealer is a businessman, acutely aware of his market, and that he would not imply an economic link between the two without something more? It is, of course, not to say that an economic link could not be present but given the nature of the decision (a final interdict in a reported case likely to set a precedent for these increasing disruption businesses ie aggregator sites that are ultimately pro consumer), Afro Leo would have expected to see some guidance as to why the judge comes to that conclusion.
It is understood that the case is going on appeal. The decision can be found here.
Original post updated with format changes and to include link to case.