The Question
Kenzo is a Korean manufacturer of computer screens, which he markets under the
trademark VISIONVIEW. Kenzo’s mark VISIONVIEW is not registered as a
trademark in South Africa. Kenzo markets his products worldwide through a chain of
national distributors. Kenzo’s products are m...
, To determine whether Kenzo can prevent Lungi from using the VERSIONVIEW
mark, we need to consider both private law concerning competition (particularly
unfair competition) and the relevant provisions of the Trademarks Act 194 of 1993 in
South Africa.
(a) Preventing Lungi from Using the VERSIONVIEW Mark Under Private Law of
Competition
Under South African private law related to competition, specifically dealing with
unfair competition, Kenzo may have grounds to prevent Lungi from using the
VERSIONVIEW mark. Here are some key considerations:
1. Passing Off: Kenzo could potentially argue that Lungi's use of
VERSIONVIEW constitutes passing off. This is a form of unfair competition
where a competitor misrepresents their goods or services as those of another,
leading to confusion among consumers. Kenzo has established goodwill in its
VISIONVIEW brand and can demonstrate that consumers associate this
name with Kenzo's products.
2. Confusion: Since the marks VISIONVIEW and VERSIONVIEW are
phonetically and visually similar, it is likely that consumers may be confused
about the source of the television screens. Confusion can blur the association
between Kenzo's reputable products and Lungi's new offerings.
3. Reputation and Distinction: Kenzo's VISIONVIEW mark is widely
recognized and associated with high -quality computer screens in South
Africa. If Kenzo can prove that Lungi's use of VERSIONVIEW is likely to
cause confusion or dilution of its brand reputation, it strengthens its case.
4. Lungi’s Knowledge: If Kenzo can demonstrate that Lungi was aware of the
VISIONVIEW brand before adopting VERSIONVIEW and chose to proceed
anyway, this could also support claims of unfair competition.
(b) Preventing Lungi from Using the VERSIONVIEW Mark Under the
Trademarks Act 194 of 1993
Under the Trademarks Act 194 of 1993, Kenzo’s ability to prevent Lungi from using
VERSIONVIEW depends on several factors:
1. Unregistered Marks: Since Kenzo's mark VISIONVIEW is not registered, he
does not have exclusive rights that come with registration. However, he may
still have common law rights based on use and reputation.
2. Section 34(1)(a) and (b): According to Section 34 of the Trademarks Act, no
person may use a mark that is identical or similar to a registered trademark in
relation to goods that are identical or similar, where such use is likely to cause
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