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getup used in relation to the applicant's Smirnoff Ice and Smirnoff Spin products as illustrated in annexure "UDV1" to the founding affidavit. 2. The respondent is ordered to pay the costs of the application. For the appellant: None indicated For the respondent: None indicated

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Diageo North America Inc and another v DGB (Pty) Ltd[2006] 3 All SA 529 (T)

Case Law

Country

South Africa

Country Location

Latitude: -28.58043087631903

Longitude: 24.820993917210945

Country Location (linked Case Law): South Africa

Decision Date: Feb 25, 2004

Case Status: Closed

Case Outcome (Procedural)

Admissibile

Case Outcome (Disposition)

Injunction, Order, or Motion Granted

Keywords

Intellectual Property
Trademark

Judicial Body: Administrative Court

Court Name: Transvaal Provincial Division

Case Number: 6881/03

Case Summary: The First Applicant owned all the rights in its spirit cooler beverages sold under the "Smirnoff Ice" and "Smirnoff Spin" trademarks and had licensed the Second Applicant to use the get-up and trademarks in South Africa. The Respondent on the other hand, manufacture and marketed a similar product under the name "Nordic Ice". In granting an interdict to the Applicant, the court held that the Applicant had proven its reputation and deceptive similarity between the goods hence prohibited the Respondent from passing off its products as those of the Applicants.

Case Significance: The court provided that an applicant needs to not only show that they had gained a reputation with regards to the product in question, but that the reputation was in existence at the time that the Respondent entered the market. It also stated that an applicant does not need to prove a conscious intent to deceive on the part of the respondent to prove likelihood of confusion.

Notes: The court laid out the test for passing off as enshrined and the requirements so as to grant the Applicant the sought after interdict. It found that the Applicants had to prove their reputation attached to the particular product and that the representation by the Respondent amounted to passing off.

Collection

CIPIT

Date Updated: Nov 4, 2019

Primary Documents

Diageo North America Inc and another v DGB (Pty) Ltd [2006] 3 All SA 529 (T).pdf
English
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Diageo North America Inc and another v DGB (Pty) Ltd[2006] 3 All SA 529 (T)

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