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BRIEF FACTS
The 1st Applicant is the proprietor  of a registered SA  Trade mark  numbers 1959/ 000057, 1995/12283, 1980/06446 AND 2001/18582 all of which are versons of adidas – very well known 3 stripe trade mark.
The 1st applicant’s products  bearing those marks are marketed  and sold  in SA  and globally.  The 1st Applicant is Adidas AG,  was established  in accordance  with the provisions  of laws  of Germany.
It is the parent company  of the adidas group  of companies. The 1st applicant is responsible for the management  and licensing of adidas  and other  ntellectual Proprty  rights globally and includes  the enforcement  of Adidas Trademark and other IPR .
 The 2nd applicant Adidas International Markeing BV, a juristic first established in accordance with the laws of Netherlands .  The second applica nt is wholly owned  subsidiary  of the 1st Applicant. The Respondent is a SouthAfrican Company .

The applicant’s case is that the respondent in the conduct of its business was infringing  the registered trade  marks and was passing off his goods as being those of the applicant  or being connected in the cause of trade with the applicant.The applicant thus sought that the respondent  be restrained from infringing upon the trademark it so registered and consisting of 2 or 4 parallel stripes of a color or material different from the colour or material of the footwear upon which they are placed in a particular configuration as to likely deceive or create confusion. 

ISSUES:
1. Whether the marks of the Respondent’s footwear are identical or are so nearly resembling the registered  trademarks as to be likely to deceive  or cause confusion 

RESOLUTION OF ISSUE
The judge was of the view that even if the fact  about the Respondent’s trade marks or device or brand name are objectively meaningless or generic the ,judge could not also conclude that they do not serve to distinguish respondent’s footwear from Applicant’s  footwear.

The court was of the view that the identification of what applicants’ trade mark is, is a question that the court has to first answer before it can make a comparison between the marks of the applicants and the marks of the respondent.

The Respondents submitted that  the mark that the applicants set out to register  and infact registered  encompassed 3- stripes only. It did not seek to register any combination of 2or 4 stripes.

Accordingly, the court was of the view  the shoes of the respondent bearing 2 and 4 stripes combinations do not so nearly resemble the 3-stripe trade mark of the applicants as tobe likely to deceive or  cause confusion.

The  court further found that the use of the registered mark, the name Adidas and its device are disputedly distinctive of applicant’s footwear. The get-up  features that the applicants claim are distinctive of its footswear were challenged by the respondent on the basis that they are genric and occur commonly in footwear market.
Although the applicants alleged that each label of origin on each of respondent’s offending footwear are generic names or names that are not distinctive, it has not been able to sthow that despite the presence  of these labels  and the absence of the Adidas device, the average consumer is likely to be confused  to the point that the association may be made between respondent’s  footwear and Adidas’ brand of footwear.

CONCLUSION
It was ordered
1.    That the respondent had not infringed the applicants’ trade marks registered under trade mark numbers: 1959/000057; 1995/12283;1980/06446 and 2001/18582
2.    The respondent  did not passed-off its footwear as those of the applicants  or as having an association  with the footwear  of the applicants.
3.    The application for an interdict is dismissed with costs.
4.    The counter-application  for the entry  of a disclaimer against the 1st Applicant’s registered trademark is dismissed with cost. 

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