Statutory trade mark infringement and questions about confusion

Author Owen Salmon

ISSN: 2521-2591
Affiliations: One of the Senior Counsel for the Republic of South Africa
Source: South African Intellectual Property Law Journal, 2019, p. 163 – 181


This article considers the principles advanced by South African courts in trade mark infringement litigation pertaining to confusingly or deceptively similar word marks. Such consideration entails the discussion of case law from other jurisdictions, where it has informed South African case law. It also draws on recent UK and ECJ case law that exemplifies a modern purpose-driven approach to these disputes. The article argues that several of the principles applied by South African courts are outdated, inappropriate and ill-suited to the task. It contends that the courts ought to dispose of or modify such principles in view of current modern contexts, including online environments, in which consumers operate. Accordingly, it puts forward recommendations for statutory reform which would be more appropriate for the contemporary context.