Assessments of Shape Marks’ Distinctiveness and Passing-off.

Journal article

1 online resource (pages 1157–1164)

Trade Marks Act (No. 194 of 1993), Sec. 9(2) ‒ Dart Industries Incorporated and Another v Botle Buhle Brands Headnotes by the Editorial Office 1. Since containers are not usually perceived as source indicators, a container mark must, to fulfil a trade mark function, at least depart significantly from the norm or customs of the sector. Only a shape which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin, has a distinctive character. 2. In passing-off proceedings, the court must consider all extraneous factors in concluding that confusion is likely. A successful passing-off action meets three requirements: (1) proof of the relevant reputation; (2) the reasonable likelihood that members of the public may be confused into believing that the business of one is, or is connected with, that of another; (3) damage. Supreme Court of Appeal, judgment of 1 December 2022 ‒ 636/2021

Crossref

GRUR International, 2632-8550 ; 72, 12, 2023.

[Oxford, England] : Oxford University Press (OUP), 2023

English

https://academic.oup.com/grurint/article/72/3/231/6998505

External Online Journals > GRUR