Jeremy Speres has pointed out that the appeal decision on the matter between Swartkops and Cerebos was handed down on 10 May 2013.
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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?
1 comments:
Write commentsThe appeal court applied the right test and arrived at the correct conclusion.
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