n South African Law Journal - Origin of the species II : the Verimark case and trade mark infringement : note
|Article Title||Origin of the species II : the Verimark case and trade mark infringement : note|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Publication Date||Jan 2007|
|Pages||702 - 709|
In the case of Die Bergkelder Bpk v Vredendal Koöp Wynmakery 2006 (4) SA 275 (SCA) the Supreme Court of Appeal (SCA) questioned, by way of an obiter dictum, whether non-trade mark use can amount to infringement (for a discussion of this decision, see Wim Alberts 'Origin of the Species : Trade mark infringement after the Bergkelder case' (2007) 124 SALJ 237). In Verimark (Pty) Ltd v BMW AG  SCA 53 (RSA) (hereafter Verimark) the SCA, per Harms ADP, has now provided the answer. The facts of the case were that Verimark produced television advertisements for its car care products, showing them to be effective even against fire, and in the process used BMW vehicles to illustrate the product's qualities in that regard. The BMW mark was also used on the products themselves, in the form of a photo of the vehicle on the packaging. BMW instituted trade mark infringement proceedings on two bases.
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