Interrogating trade mark protection for ‘similar’ goods or services : a case for alternatives?

Abstract

When the Trade Marks Act, 194 of 1993 (the ‘1993 Act’) came into force on 1 May 1995, it introduced the concept of protection for trade marks (in both registration and use situations) in relation to ‘similar’ goods or services. In particular, s 10(14) provides that a trade mark is unregistrable if it is identical to a prior registered trade mark or so similar to it that its use in relation to the goods or services for which registration is sought and which are the same as or similar to the registered goods or services, would be likely to deceive or cause confusion. Section 34(1)(b) is the counterpart to s 10(14) and stigmatises as infringement the use of an identical or similar trade mark to a registered trade mark in relation to goods or services which are so similar to the registered goods or services that, in use, there exists the likelihood of deception or confusion.