TY  - GEN
N2  - 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
DO  - 10.1093/grurint/ikad111
DO  - doi
AB  - 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
T1  - Assessments of Shape Marks’ Distinctiveness and Passing-off.
JF  - GRUR International
VL  - 72, 12, 2023
LA  - eng
ID  - 49123
KW  - Intellectual property.
KW  - Trademarks
KW  - Trademarks.
KW  - Patents.
TI  - Assessments of Shape Marks’ Distinctiveness and Passing-off.
LK  - https://doi.org/10.1093/grurint/ikad111
UR  - https://doi.org/10.1093/grurint/ikad111
ER  -