n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - The concept 'similar goods' in trade-mark law : analyses




Wine and wine glasses are not similar goods, but medicine and cool-drinks may be. Clothes and suntan lotions are similar goods, but toffee-flavoured spread and toffee-flavoured ice-cream toppings are not. Are these findings of similarity (or dissimilarity) the results of the facts of each case, or of the terminology used in the legislation of the different jurisdictions? Here I shall discuss the terminology used in the European Community Directive, and the South African and the United Kingdom legislation, and then analyse relevant decisions in these jurisdictions. (For the sake of brevity, I shall refer only to similar goods, unless a service mark is in issue.)

The classification system is an essential component of trade-mark law. All marks are applied for and registered in one or more of a variety of goods and services classes. The classification system and the contents of each class are the same worldwide and determined by the International Classification of Goods and Services drawn up under the Nice Agreement of 1957. In most jurisdictions, infringement protection used to be limited to the goods for which the mark was registered, and so marks were registered with broad specifications to expand this protection as far as possible. But the fact that protection was limited to the specific goods for which the mark was registered meant that the same mark could be used by different proprietors, provided that this was in respect of different goods.


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