Trade Mark Squatting - South Africa
In the case of Lubbe NO v. Millenium Style, the appellants had registered the shape and configuration of shoe sales in five separate trademark registrations. The respondents attacked the registration on the basis that the sales were incapable of being registered. The Supreme of Court held that the Trade Marks Act in force at the date of registration did not permit registration of shapes. It was not persuaded by the argument that the marks qualified as devices were suitable trademark subject matter under the relevant Act. The Court rejected the device argument for two reasons. First the registrations were subject to an admission, disclaimer, memorandum, limitation or condition to the effect that the marks "consisted of a device of the design of a sole applied to footwear". and that there was a big difference between a device and a design of a sole which failed to rescue the registrations. Secondly,on the appellant's argument related to the trademark value of distinctive shoe soles and devices for soles, as considered under the current Trade Marks Act which permits registration of devices, shapes and configurations, the court held that the mere fact that soles may be distinctive does not mean that they are distinctive in a trademark sense as shape and sole would be regarded by the purchaser either as ornamental or as part of the shoe-tread design, and seldom would be considered to be a source identifier. The Supreme Court vide its decision SCA 10 (RSA-2007) compared the registration of shapes and configurations of shoe soles, which were not permissible under the then-applicable legisation, to cybersquatting and lambasted those who squat on the trade mark register and who use the register to stiffle competition for without statutory purpose.
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