QUESTIONS
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School
University of Pretoria *
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Course
320
Subject
Law
Date
Nov 24, 2024
Type
Pages
4
Uploaded by ElderPartridge3544
QUESTION 1
Randy is a South African manufacturer of cosmetic products, which she markets under the trademark REVIVE.
Randy has also registered REVIVE as a trademark under the Trademarks Act in respect of cosmetic products.
The REVIVE range of cosmetics proves extremely popular and well-known in South Africa due to the reputation
REVIVE has acquired over the years as a proven, safe, reliable and effective product for the revival of ageing and sun-
damaged skin.
In 2019, Luyanda starts ‘manufacturing’ her own range of cosmetic products in competition with Randy. Luyanda’s
products are marketed under the trademark REVITALIZE and in a similar packaging to that used by Randy.
Randy also discovers that Luyanda has also applied to the South African registrar of Trademarks to register
REVITALIZE as her trademark in respect of cosmetic products Randy approaches you for legal advice.
•
With reference to the Trademarks Act, provide Randy with legal advice as to how she can deal with
Luyanda’s actions. Refer to relevant legal principles and provisions, and to case law, in support of your
position.
•
For ease of marking, please ensure that the different aspects of your answer, as your understanding of the
facts and law may determine, are clearly identified and demarcated (10)
QUESTION 2
Company XYZ is the registered holder (“proprietor”) of the well known Michelin trade mark which is inter alia
registered in South Africa as a trade mark in respect of tyres.
PRS (Pty) Ltd manufactures and sells tyres in South Africa under the trade mark Tekky-Tyres. An advertisement
brochure of PRS reads inter alia: “Tekky-Tyres gives you the same quality and toughness as Michelin tyres at a
fraction of the price!”
•
Explain whether this advertisement infringes the rights in the registered trade mark Michelin in terms of section
34(1)(a) and section 34(1)(c) respectively of the Trade Marks Act 194 of 1993. (You must not discuss the
common law on passing off/ assimilation)
•
You must also contrast the judgments in Abbott Laboratories v UAP Crop Care (Pty) Ltd [1999] 1 All SA 502 (C)
and Verimark (Pty) Ltd v BMW AG [2007] SCA 53 (RSA) with one another. [10]
QUESTION 3
Company XYZ has used the registered trade mark Suddywonder since 2000 for washing-powder after registering
that mark in South Africa as a trade mark in the same year.
The trade mark as been registered in respect of soap and washing-powder in Class 3. By the end of 2003
Suddywonder was already one of the three most popular washing-powders in South Africa.
1.
P is the holder of the trade mark Spiff which he uses in South Africa in respect of washing-powder. In February
2004 P placed advertisements in the press stating inter alia : “Spiff beats Suddywonder time and again!”
Explain whether this conduct of P has infringed the trade mark of Company XYZ in terms of section 34(1)(a) of
the Trade Marks Act 194 of 1993. (6)
2.
In October 2004 R applies for the registration of Suddiwunder as a trade mark for inexpensive digital cameras in
Class 9.
Will Company XYZ be successful in opposing this application for registration of Suddiwunder, in terms of section
10 of the Trade Marks Act 194 of 1993? Substantiate your answer fully. (6)
3.
S, a local wholesale dealer, imports large quantities of Suddywonder washing-powder from Namibia and is
selling it in South Africa at a lower price than that of Company XYZ. The imported washing-powder is
manufactured in Namibia by T, a licensee of Company XYZ.
4.
Explain whether the importation by S constitutes an infringement of the registered trade mark of Company XYZ.
(2)
QUESTION 4
The British entrepreneur, Sir Richard Branson, is the holder of the renowned trade mark Virgin. A certain Mr Kobus du
Plessis produces a wine in the Langeberg district near Riversdale in the Western Cape which he markets under the
trade mark Virgin Earth in South Africa and overseas.
1.
Assume that Branson’s trade mark Virgin is not registered in South Africa, but is known amongst affluent
South Africans in respect of air services and health clubs. Du Plessis applies in South Africa for the
registration of Virgin Earth in class 33 (alcoholic beverages) as trade mark for his wine.
Branson opposes this application inter alia on the grounds that his trade mark is a well-known trade mark as
intended in paragraph (6) of section 10 of the Trade Marks Act 194 of 1993.
Explain what Branson will have to prove to succeed with an opposition based on this provision of the Act and
indicate, with substantiation, his chances of success. (5)
2.
Assume that Branson’s trade mark Virgin has been registered in South Africa in respect of air services and
health clubs. The other facts above remain the same.
Branson wishes to oppose the application in terms of the anti-dilution provision contained in section 10 of
the Trade Marks Act 194 of 1993.
Explain what Branson will have to prove to succeed on this ground of opposition and indicate his chances of
success. Fully substantiate your answer. (5)
QUESTIO 5
Since 2007 P is the registered holder of the trade mark SUMMA for suntan lotion in Class 3 in South Africa. SUMMA
is presently one of the four most popular brands of suntan lotion in the country.
It is an expensive, but high quality product.
1.
Since September 2012 W has been marketing a suntan lotion under the unregistered trade mark STOBURN.
In advertisements of W the statement is made that “STOBURN is as effective as SUMMA - at half the price.”
Explain whether this advertisement of W constitutes an infringement of P’s registered trade mark in terms of
section 34(1)(a) and/or 34(1)(c) of the Trade Marks Act 194 of 1993. (You should not discuss the common
law in this regard!) (10)
2.
In November 2012 T applies for registration of the trade mark SUMMA for ice lollies in Class 30. T envisages
an inexpensive product intended for the lower income market.
Fully advise P whether he may prevent the intended registration and if so, on what legal ground. (5)
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QUESTION 6
DaimlerChrysler Aktiengesellschaft (called “DCA” hereafter), a corporate body, is the manufacturer of the well-
known Mercedes-Benz vehicles. DCA is also the registered proprietor (holder) of the registered trade mark
Mercedes-Benz in South Africa. This trade mark is registered in class 12 as a goods mark in respect of motor
vehicles.
MB Auto Tech CC is a close corporation which conducts a business in Pretoria in relation to the servicing,
maintenance and repair of motor vehicles under the name and style of Mercedes-Benz Auto Tech. No ties,
contracts or licences of any nature exist between DCA and the close corporation concerned.
•
Explain whether the unauthorised use of the name Mercedes-Benz Auto Tech by the close corporation
infringes the registered trade mark of DCA in terms of section 34(1) of the Trade Marks Act 194 of 1993.
•
Indicate clearly, with the necessary substantiation, whether infringement in terms of section 34(1)(a) and/or
34(1)(b) and /or 34(1)(c) is applicable, or not. [10]