SAYBROOK (1978) (PVT) LTD & ANOR v GIRDLESTONE 1986 (2) ZLR 185 (S)

Flynote

Delict — passing off — get — up — indirect representation by imitation of get — up that products were those of competitor — deception of ordinary purchaser.

Headnote

Generally a manufacturer is permitted to use and indeed to copy another's concepts, ideas and scenes in the absence of a registered patent or design except to the extent that his imitation amounts to a representation that that product in which such concepts, scenes, ideas or designs are incorporated is that of another manufacturer who has gained a reputation in the market through the concepts, ideas, scenes and design so copied.

The court must be satisfied that the conduct complained of is calculated to pass-off other goods as those of the complainant or at least to produce confusion in the minds of probable customers as would likely to lead to the other goods being bought for the complainant's.

The type of purchaser whose likely deception is to be considered is the ordinary person who has in mind's eye a general idea of the appearance and characteristics of the articles he wishes and who looks at the article not closely but sufficiently to take in its general appearance. 6