Bata Ltd v Face Fashions CC and another 2001 (1) SA 84 (SCA)

In deciding whether there exists a reasonable likelihood of confusion between the two marks POWER and POWERHOUSE, the Court held that the marks not only had to be compared to each other, but consideration should also be given as to whether the average customer would probably be confused or deceived. The dominant feature of the mark, the general impression and any striking features were all factor to be considered.

What had to be considered is whether the notional customer of average intelligence, viewing the marks as a whole or looking at the dominant features of each mark, was likely to be confused or deceived into believing that the goods bearing the respective trade marks were connected in the course of trade.

In this case, the Court held that the common element between the marks was a minor significance when the marks were looked at as a whole. The overall impression was that the marks did not closely resemble each other and the average consumer would not be confused or deceived into believing that goods bearing the respective marks were connected in the course of trade.

The importance of this decision lies in the guidelines laid by the Supreme Court of Appeal in determining whether two marks are confusingly or deceptively similar.