Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd [2010] 1 All SA 25 (SCA) Division: SUPREME COURT OF APPEAL Date: 11 September 2009 Case No: 408/2008 Before: LTC HARMS DP, JA HEHER, MML MAYA, BJ VAN HEERDEN JJA and MJD WALLIS AJA Sourced by: A Street Summarised by: DPC Harris Parallel Citation: 2010 (2) SA 600 (SCA) . Editor's Summary . Cases Referred to . Judgment . Intellectual property law Trade marks Alleged infringement In comparing trade marks, regard had to be had to the whole of the marks to determine whether they so nearly resemble each other as to be likely to deceive or cause confusion. Editor's Summary An action based on trade mark infringement was dismissed in the High Court, leading to the present appeal. The appellant relied on section 34(1)(a) of the Trade Marks Act 194 of 1993, and claimed damages in respect of two of its trade marks. Held Section 34(1)(a) of the Trade Marks Act 194 of 1993 provides that the rights acquired by registration of a trade mark are infringed by the unauthorised use, in the course of trade in relation to goods or services in respect of which the trade mark is registered, of an identical mark or of a mark so nearly resembling it as to be likely to deceive or cause confusion. The Court examined the respondent's product (shoes), and tried to establish what its trade mark, as represented on the shoe, was. The next question was whether the stripe on respondent's shoe, which was not substantially the same as the marks in issue, would have been perceived by the purchasing public as a source identifier or as an adornment. The appellant contended that the stripe had trade mark significance. If that was so, then regard had to be had to the whole of the mark, which consisted of the stripe with the name, to determine whether it so nearly resembled any of appellant's marks as to be likely to deceive or cause confusion. As the appellant's trade mark prominently featured its name, the reliance on the first trade mark had to fail. On the second issue, the appellant argued that the question of the likelihood of confusion or deception is a matter of first impression and that one should not peer too closely at the registered mark and the alleged infringement to find similarities and differences. The Court, however, agreed with the trial court that regard must be given to the overall impression given by the marks; and that registered trade marks do not create monopolies in relation to concepts or ideas. It was held that the average consumer would have had regard to the fact that the words "DT NEW YORK" was part of the trade mark and would have noted that the two stripes were significantly different and, consequently, the respondent's mark was not confusingly or deceptively similar. The appeal was dismissed. Notes For Intellectual property see: . LAWSA First reissue Vol 29 Page 26 of [2010] 1 All SA 25 (SCA) . Burrell TD Burrells South African Patent and Design Law 3ed Durban LexisNexis Butterworths 1999 Cases referred to in judgment South Africa Bergkelder Bpk v Vredendal Koöp Wynmakery [2006] 4 All SA 215 ([2006] ZASCA 5; 2006 (4) SA 275 (SCA) Referred to 28 Cowbell AG v ICS Holdings Ltd [2001] 4 All SA 242 ([2001] ZASCA 18; 2001 (3) SA 941) (SCA) Applied 28 Laboratoire Lachartre SA v ArmourDial Inc [1976] 3 All SA 88 (1976 (2) SA 744) (T) Applied 28 Lubbe NO v Millenium Style (Pty) Ltd [2007] 4 All SA 692 ([2007] ZASCA 10; [2007] SCA 10; 2007 (6) SA 241) (SCA) Referred��to 28