n Lesotho Law Journal - Trademarks and loss of distinctiveness - : notes & comments

Volume 23, Issue 1
  • ISSN : 0255-6472



The recent judgment of Fourie J. in the case emphasizes the need for a trademark owner to take active steps to monitor and prevent unauthorized use of his trademark by third parties as a way to protect the trademark from losing its distinctiveness. The court was satisfied that there was sufficient evidence to prove wide spread and extensive use of the respondent's mark and confusingly similar marks by third parties in connection with their own goods without the respondent's permission and on products not connected to the respondent. As a result, the respondent's mark had lost its distinctiveness to become merely descriptive of goods made of chocolate and cocoa. The court reiterated the trite principle that distinctiveness is a fundamental requirement of a trademark and once it is lost, the mark falls into the public domain and is subject to be cancelled from the Register of trademarks. This principle applies in the case at hand because the respondent's trademark was no longer able to distinguish goods originating from the respondent from those of other competing entities.

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