BACKGROUND
This article discusses the recent South African Supreme Court of
Appeal ("SCA") judgment of Open
Horizon Ltd v Carnilinx (Pty) handed down on 26 May 2022.
THE FACTS
A South African tobacco company ("the
Appellant") registered, inter alia, the
trade marks PACIFIC, PACIFIC STORM, and PACIFIC MIST in South
Africa in class 34 covering tobacco and cigarettes.
A competitor ("the Respondent")
started using the trade marks ATLANTIC, ATLANTIC WAVE, ATLANTIC
BREEZE, and ATLANTIC BLUE in South Africa, also in relation to
tobacco and cigarettes.
The Appellant sued for trade mark infringement, later adding a
claim of unlawful competition. The High Court was not convinced
that the Appellant had a case and the Appellant took the matter on
appeal. The SCA dealt first with the issue of trade mark
infringement.
