Answer ... The owner of an unregistered mark may file an application with the High Court under the common law action in delict for passing off. The owner must establish that:
- its mark has acquired goodwill and reputation;
- the offending party has been passing off or misrepresenting its own goods or services as those of the owner; and
- this conduct has resulted in damages (financial, reputational or both) to the owner.
If successful, the owner may obtain an interdict barring the party from using its mark and damages.
Answer ... The legal rights are for infringement, border protection, interdict, seizure of counterfeit goods and damages.
Answer ... The owner of a mark registered in Part B may obtain protection against infringement and all other rights of the owners of distinctive marks in Part A. However, a Part B mark is very weak, in that a party against which action is taken may overcome the claim by establishing that the mark is not distinctive and that it is also entitled to use the mark.