used the mark Mikacote in relation to goods in respect of which appellant's trade mark is
registered; and I have held that respondent used Mikacote "as a trade mark". The only
remaining issue in regard to infringement is whether the mark used by respondent so
nearly resembled appellant's registered trade mark —
"as to be likely to deceive or cause confusion".
The meaning of these words and the general principles governing their application to the
facts of a particular case have frequently been canvassed in our courts. In the recent case
of International Power Marketing (Pty) Ltd v Searles Industrials (Pty) Ltd. 1983 (4) SA
163 (T), MARGO J, delivering the judgment
33
of the Transvaal Provincial Division, gave a full review of the legal principles applicable
to such an issue and cited most, if not all, of the relevant cases. It is not necessary to
repeat these citations of authority. The main legal principles relevant to the decision of
the instant case may be briefly summarized as follows:In an infringement action the onus is on the plaintiff to show the probability or likelihood
of deception or confusion. It is not incumbent upon the plaintiff to show that every person
interested or concerned (usually as customer) in the class of goods for which his trade
mark has been registered would
34
probably be deceived or confused. It is sufficient if the probabilities establish that a
substantial number of such persons will be deceived or confused. The concept of
deception or confusion is not limited to inducing in the minds of interested persons the
erroneous belief or impression that the goods in relation to which the defendant's mark is
used are the goods of the proprietor of the registered mark, i.e. the plaintiff, or that there
is a material connection between the defendant's goods and the proprietor of the
registered mark; it is enough for the plaintiff to show that a substantial number of persons
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