South Africa: Developments regarding the protection of well-known trade marks
In a recent case before the Supreme Court of Appeal (SCA) in South Africa, the court enquired as to when a trade mark may be considered "well-known". The enquiry dealt with how to identify the scope of the public that must be familiar with the trade mark and the extent to which members within the sector must be aware of the trade mark, before it may be considered well-known.
Previously, the leading case in this regard merely held that the mark must be known to a substantial number of persons that are "interested in the goods or services to which the mark relates."
The SCA has now indicated that for a sector of the public to be regarded as the relevant sector "the persons constituting the sector in question must know of or be interested in the mark for the reason that trade marks are given protection, namely their attractive force in the goods and services as a badge or origin of those goods and services."
In this particular matter, the court identified a further relevant sector of the public, the target customer of the product, and found that the evidence provided did not show that the trade mark in question was sufficiently known among that particular sector of the public.
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