“You know you’re winning when you’re being copied.” (Robin Sharma, author of The Monk Who Sold His Ferrari)

Whether your business is brand new or well established, you need to protect your trading, product and service names from being unlawfully copied. Often your names (and associated logos and other branding) are essential elements in your business’ goodwill and profitability. It can be disastrous if competitors adopt similar branding in order to confuse customers and divert business away from you.

Your strongest protection will always be in the form of a registered trade mark, but don’t despair if you don’t have one – our laws still provide protection through the “passing off” concept.

A recent Supreme Court of Appeal (SCA) judgment provides a perfect example.

“Logic” and “Logik”: Similar names, confused marketplace

The opposing sides in this saga are Fire Logic (Pty) Ltd t/a “Fire Logic”, and Logik Group Africa (Pty) Ltd t/a “Fire Logik” (the company itself was previously Fire Logik (Pty) Ltd). Both operate in the same industry (fire protection and safety systems): Fire Logic since 1994 and Fire Logik since 2015.

In 2021 Fire Logic applied to the High Court to interdict Fire Logik from continuing to trade under that name. Logik Group denied any wrongdoing, but the High Court granted the interdict and the SCA confirmed it on appeal.

To understand that outcome, let’s have a look at the law underlying it.

What is “passing off” and how do you prove it?

To succeed in a claim for passing off, you will have to prove three elements:

• Reputation or goodwill in your product or brand. That was easily proved here by Fire Logic with its long track record.
• Misrepresentation by the other party’s actions causing, or reasonably likely to cause, confusion and deception among consumers. Unsurprisingly, given these names being pronounced identically and with only one letter’s difference between them, the Court found there to have been significant market confusion between the two businesses – such as misdirected purchase orders and misleading Google searches. 
• Damage, or a likelihood of damage, to your reputation or goodwill flowing from misrepresentation. Again, this was easily proved in this case by Fire Logic given its trading history.

The core question is a factual one, to be answered in light of all the circumstances of each case: Is there a reasonable likelihood that members of the public may be confused into believing that the business of the one is, or is connected with, that of the other?

How best to protect your brand and goodwill?

A registered trade mark will always be your best and strongest protection, and although registration doesn’t come cheap, the cost could well be justified when you consider the alternative – having to apply to the courts for redress.

If you have no registered trade mark, and must rely on passing off provisions for protection, maximise your chances of success with these tips:

• Ensure that your trading names are reflected in all your registered company names, domain names, websites, social media channels, marketing channels, letterheads, email signatures, legal documentation and so on.
• Keep proof of when and how you first started using each of your trading name/s – length and depth of use by each party will be a factor in these cases.
• If you want countrywide protection, you must build up a track record in all provinces. In this case the interdict was confined to only the two provinces (Eastern and Western Cape) in which Fire Logic had built its reputation.
• Be ready to prove the goodwill in your brand. How well known are you? What track record have you built up under the name/s in question? What market share do you have?
• Be ready to show a “reasonable likelihood” that members of the public will be confused into believing that your competitor’s business is, or is connected with, yours. Keep detailed notes of all actual instances of confusion between the two businesses.
• Take legal advice and action at the first sign of any competitor using a name that may cause your businesses to be confused with each other. Delay in enforcement could harm your case!

“Wouldn’t it be nice to get on with me neighbours?” (from “Lazy Sunday” by  Small Faces)

Maintaining friendly relations with the neighbours, or at least an “I’ll ignore you if you ignore me” sort of neutrality, has probably been a primary aim of homeowners since the dawn of history. No doubt even our cave dwelling ancestors were as keen to get on with the Joneses next door as they were to keep up with them. But as we all know, it’s not always easy.

A recent High Court fight over parking rights is unfortunately pretty much par for the course when it comes to neighbourly relations deteriorating into open conflict, both inside and out of the courtroom.

“You can’t park here!” “Yes, we can!”

The setting for this fight: Higgovale, a small and affluent suburb on the slopes of Table Mountain in Cape Town. In one corner: a couple with the right to access their garage using a servitude road. In the other corner: the neighbours, alleged to have impeded the couple’s garage access by parking in the road.

At the heart of the dispute: the road servitude. Servitudes involve a balancing act between the right of the “dominant owner” to exercise the servitude and the right of the “servient owner” to have the servitude exercised in such a way as to impose the “lightest burden” on their property. The tensions inherent in such a relationship can easily escalate into conflict – exactly what happened here.

The garage-owning couple’s initial stance was to ask the Court for a blanket interdict against all parking by the neighbours in the road, but they later softened that to ask only for an order against their garage access being obstructed.

The Court had no hesitation in ordering that the neighbours “are interdicted and restrained from parking vehicles on the servitude area at … Higgovale, in such a manner as to unreasonably obstruct the applicants from entering and exiting their property and exercising their right of way.”

In doing so, the Court took the parties to task for failing to settle their dispute out of court, and urged them “to engage with each other in a manner that promotes the spirit of ubuntu, and the constitutional vision of a caring society based on good neighbourliness and shared concern” (emphasis supplied), and to consider demarcating parking bays in the road as a short-term solution.  

The parties now have to pay their own costs (except for the costs of one interim application), and they’re effectively back to square one: having to engage with each other to try to find a fair solution.

What’s a “reasonable neighbour”?

Per the Court (emphasis supplied): "While the common law requires that neighbours act reasonably, the Constitution shows what a reasonable neighbour looks like. She is not only concerned with advancing her own private interests but cares also for the needs of her neighbours. She seeks mutually beneficial solutions. The mindset of the reasonable neighbour is one of collaboration, not competition. She sees herself not as an isolated individual, but a partner in an interdependent community of persons, all of whom are to be respected and valued.”

First prize: Settle!

Courts want us to settle these sorts of disputes in that collaborative spirit, without recourse to law. But if a friendly discussion over a cup of coffee doesn’t resolve the situation, more robust action might be unavoidable – we’re here to help if you need us.  

“Sexual harassment is the most heinous conduct that plagues the workplace.” (Extract from the judgment below)

Our courts have no tolerance for sexual harassment in the workplace, stressing that, at its core, it is concerned with power dynamics at work.

A recent Labour Court decision has confirmed that in assessing whether or not an employee is guilty of such harassment, it is the victim’s perspective that must lie at the heart of the enquiry. Victims will take heart from this decision, while employers and other employees should understand clearly the dangers of not heeding it.

Manager fired after inviting an employee to sit on his lap

A bank manager was found guilty of two counts of gross misconduct in respect of:

1. Sexual harassment: Allegations of inappropriate, unwelcome comments towards a female employee, which she said continued despite her asking him to stop.

   These comments were about her hair, clothing and appearance, such as “you are so beautiful”, “you are so stunning”, and “black looks good on you.” Most tellingly perhaps, he suggested that she sit on his lap when he was taking employee temperatures as part of a Covid screening process. All conduct that, she said, upset and offended her.

2. A harassment allegation of slamming a metal recycling bin lid to frighten her.

The manager denied all these allegations but was found guilty and summarily dismissed. He approached the CCMA (Commission for Conciliation, Mediation and Arbitration) where the arbitrator, deciding that the employee was untruthful and that no harassment had been proved, held that the dismissal was substantively unfair and awarded the manager R400k in back pay.

The bank took this decision on review to the Labour Court, which reversed the finding and confirmed the manager’s dismissal.

Let’s have a look at the Court’s reasoning.

Firstly, what exactly amounts to “harassment” and “sexual harassment”?

In general terms:

• Harassment is unwanted conduct which impairs dignity, which creates a hostile or intimidating work environment for one or more employees, and is related to prohibited grounds of discrimination like race, gender, or disability.
• Sexual harassment refers to persistent, unsolicited, and unwanted sexual advances or suggestions by one person to another. The “Code of Good Practice on Sexual Harassment” sets out guidelines for identifying and handling such cases.

The victim’s point of view is critical

The Court in deciding to confirm the manager’s dismissal commented that sexual harassment is heinous conduct. As it goes to the root of one’s being, it must be viewed from the victim’s point of view, how the victim perceived it and whether or not that perception is reasonable.

In this case, held the Court, the employee’s evidence was supported by the probabilities and was more credible than her manager’s version. He was accordingly guilty of the charges of harassment and sexual harassment, his employer could not fairly have been expected to continue the employment relationship with him, and his dismissal was fair.

Victims will take heart from this outcome, and it’s a warning to both employers and other employees to view all workplace conduct from the perspective of those on the receiving end.

Perhaps a good way of looking at it could be this: Might the recipient of a “compliment” or other “innocuous” conduct reasonably construe it as inappropriate and unwelcome? If so, employers have a duty to act, and perpetrators are in trouble.

“Trade Mark”

A trade mark is a brand name, slogan or logo that identifies your services or goods and distinguishes it from the goods and services of other businesses.

Registration gives you easily enforceable rights to use or licence the mark, and to stop others from using it (or one that is confusingly similar). Without registration, you must prove another ground for protection, such as “passing off”. Your mark can be protected forever but must be renewed every ten years. Note that trade mark rights are inherently territorial, so local registration doesn’t ensure international protection.