Rare trademark judgment in Zimbabwe
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement
Sponsored content

Rare trademark judgment in Zimbabwe

Sponsored by

spoor-fisher-400px.png
jam-428094.jpg

IP judgments in Zimbabwe are unusual, says Chris Walters of Spoor & Fisher Jersey. So the recent Supreme Court decision in Cairns Foods v Netrade Marketing is welcome

Both companies in this case sell jam. Cairn Foods has a trademark registration in class 29 for a mark comprising the word Sun and a device of various fruits, whereas Netrade has a later registration in class 29 for the mark Royal Sun.

When Netrade used an unregistered logo featuring various fruits and the term Mixed Fruit Jam, Cairn Foods sued for trademark infringement and passing off. There was proof of actual confusion.

First instance decision

The first court held the marks were not confusingly similar. Inexplicably it said that Cairn Foods’ registration was simply a device (seemingly ignoring the word “Sun”). The plaintiff appealed.

Appeal court overrules

The appeal court looked to South African law for guidance and cited a number of cases that deal with issues such as the need to consider notional use, the notional consumer, and the general impression of marks.

Unsurprisingly the court overruled the earlier court’s decision that the plaintiff’s mark did not comprise the word “Sun”, describing it as “so grossly unreasonable in its defiance of logic as to attract interference on appeal”.

The approach should not be to conduct aforensic audit of the two marks... the law does not require the court to closely peer at the mark and the offending mark to find similarities and differences”.

The correct testis an assessment of the impact which the respondent’s mark would have on the average consumer … deception or confusion is a matter of first impression not an outcome of study”.

The result

There was both infringement and passing off. The court granted an injunction.

There is nothing ground-breaking here, but it is a welcome addition to African IP jurisprudence!

more from across site and ros bottom lb

More from across our site

The firm was among multiple winners at a record-breaking 2024 ceremony held in London on April 11
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
The Americas research cycle has commenced. Do not miss this opportunity to nominate your work!
Increased and new patent fees could affect prosecution strategies for law firms and companies, according to sources
Five former Oblon lawyers felt that joining Merchant & Gould would help them offer the right prices to entice clients
The UK may not be a UPC member but its firms are still acting in proceedings, with Carpmaels among the most prominent
Naomi Pearce of Pearce IP shares how she is helping her firm become a life sciences leader and how generous policies have helped attract top talent
The Court of Appeal has dismissed an appeal filed by Ocado, in what was a key test for transparency at the new court
Each week Managing IP speaks to a different IP lawyer or professional about their life and career
INTA is calling out ‘immoral’ unregistered attendees at the association’s annual meeting, but the debate is more nuanced
Gift this article