The Supreme Court of Appeal doesn't often get to hear trade
mark cases. So when it does hand down a trade mark judgment
we pay attention.
In the case of Adidas v Pepkor (Pep Stores and Ackerman's for
the benefit of the Woolworths' set) the main issue was this:
Was Pepkor infringing Adidas's three-stripe trade mark
registrations by selling four-stripe trainers? Pepkor's defence
was that the four stripes that appeared on the shoes which it sold
were decorative and not trade marks. So yes, the
'non-trade mark use defence', the one that's become
very popular since the Appeal Court held that Verimark's use of
a BMW vehicle in a TV ad for a car polish amounted to incidental or
non-trade mark use of the BMW logo (which was visible in the ad),
and therefore not an infringement of BMW's registration for the
logo. The court in the Adidas case, in the person of Judge
Southwood, rejected this defence, saying: 'It seems to me that
it will be very difficult to persuade a
