registered). I doubt whether the suggestion that the respondent's mark might also fairly
and normally be used in relation to other varnishes would establish infringement on
respondent's part. It is not necessary , however, to express a final opinion on these points
for the mark actually used by respondent in this case was applied to the same class of
goods as the
41
registered mark and, in my opinion, the issue of deceptive or confusing resemblance can
be decided on the basis of the actual user by both parties.
I come now to compare the marks in this case, Micatex and Mikacote. Viewed side by
side the marks exhibit similarities and differences. They are both trisyllabic; they both
have as their first two syllables the word "mica". (Though in respondent's case this is
spelt "mika", phonetically the words are identical.) On the other hand, the only similarity
between the suffix "cote" and the suffix "tex" is that they are both monosyllabic.
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As I have emphasized, however, the comparison must not be confined to a viewing of the
marks side by side. I must notionally transport myself to the market place (see remarks of
COLMAN J in Laboratoire LaCharte SA v Armour-Dial Incorporated, 1976 (2) SA 744
(T), at p 746 D) and consider whether the average customer is likely to be deceived or
confused. And here I must take into account relevant surrounding circumstances, such as
the way in which the goods to which the marks are applied are marketed, the types of
customer who would be likely to purchase the goods, matters of common knowledge in
the trade and the knowledge which such purchasers would have of the goods in question
and the marks applied to them.
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As I have already mentioned, the goods to which the Micatex and Mikacote marks were
applied were offered for sale in hardware stores, multiple stores, general dealer's stores
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