The court held that where the use is solely as a keyword (i.e. it is not visible in the advert triggered) there is no likelihood of confusion or deception and therefore passing off does not occur.
The court also rejected an attempt to establish 'leaning on' as a new species of unlawful competition. The interdict application was rejected and costs were awarded to M-Systems. The decision was handed down on 29 October in the Gauteng High Court by Judge Nicholls.
"I am pleased with the decision because it promotes choice and competition which are good for the consumer, especially when there is no likelihood of confusion - which the Judge found to be the case," commented Timo Meintjes of M-Systems.
"This is a first for Africa but the ruling is in line with international case law," according to Darren Olivier and Ian Learmonth of Adams & Adams who represented M-Systems.
This case is vitally important because:
Some take home points for brand owners are:
The case is open to a request for leave to appeal.