ARTICLE · 30 MAY 2020

A Badge Of Origin

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"A trade mark. A badge. Origin. Three different concepts. Used together, there is only one concept, namely, a trade mark is a badge of origin." – Judge CJ van der Westhuizen.

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Liani Taljaard

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"A trade mark. A badge. Origin. Three different concepts. Used together, there is only one concept, namely, a trade mark is a badge of origin." - Judge CJ van der Westhuizen's opening statement in his recent Stable Brands (Pty) Ltd v LA Group (Pty) Ltd ("Stable Brands") judgement which was handed down on the 19th of November 2019.

The essential function of a trade mark and our trade mark law is to guarantee the identity of origin of the marked goods or service to the consumer by enabling him or her, without any likelihood of confusion to distinguish the goods or service from others which have another origin.

Two statutory requirements for the registrability of a trade mark flow from the aforementioned essential function of a trade mark, which function is also embodied in the very definition of a trade mark, namely;

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