One of the features of intellectual property law in South Africa is that a considerable number of cases make their way to the Supreme Court of Appeal for trade mark infringement. A recent lower court decision by an acting judge suggests why this might be.
In SA trade marks are regulated by the Trade Marks Act 194 of 1993. In the case of Accounting Made Easy CC v School Accounting Made Easy (Pty) Ltd, Gauteng Division, 25 June 2019, the main issue was this: had a registered trade mark for the Accounting Made Easy in class 41 for accounting tuition services been infringed by the use of the trade mark School Accounting Made Easy for the same services. A further issue was whether the registration for Accounting Made Easy should be cancelled on the grounds that it was generic and descriptive.
What the Court Needs to Consider
- The owner of the earlier trade mark registration must establish that a substantial number of people will probably be confused as to the origin of the goods or the existence or non-existence of a connection in the course of trade;
The Judge Findings on Trade Mark Infringement
The judge found that the term ‘Made Easy’ is common and non-distinctive in the field of tuition services, and therefore not associated solely with the mark Accounting Made Easy. But then the judge went on to hold that both Accounting Made Easy and School Accounting Made Easy are ‘unique’ marks that ‘can be distinguished from other similar marks.’ So there was no possibility of confusion between the trade marks and therefore no statutory trade mark infringement in trade mark law.