The odd spectacle of courts in different countries coming to opposite conclusions on the same set of facts emerged recently in South Africa, when Adidas’ trademark infringement action in the Western Cape High Court failed to protect its well-known three-stripe logo against defendant Pepkor, which used a similar four-stripe design on its shoes.
The Adidas mark consists of three identical and equidistant lateral stripes running parallel to each other along their shoes. The Pepkor mark shared these characteristics, with the exception of having either two or four stripes.
Adidas argued that the public would be confused by these two products and submitted survey evidence showing that many respondents interviewed had identified the Pepkor shoes as being those of Adidas. Pepkor, on the other hand, argued that it used the two/four-stripe designs as mere decorations.
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Ilse du Plessis is a director at Edward Nathan Sonnenbergs (ENS) and currently practises as an attorney in the intellectual property department
Wim Alberts is a professor at the University of Johannesburg and a special IP counsel to ENS
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