Distilleerderij voorheen Simon Rijnbende en Zonen v Rolfes, Nebel & Co [1912] ZAWLD 39 (24 December 1912)

Trade mark - Infringement - Passing off

To constitute an infringement of a trade mark there must be either an adoption or a colourable imitation of the trade mark or of one or more of its essential particulars or of some part ot the trade mark to which the applicants have the exclusive right.

In a "passing off" action the only question to be decided is whether the defendant has so taken distinctive or characteristic features of the plaintiff's "get up" as to deceive a reasonable person accustomed to buy that class of goods, and it is immaterial whether the defendant has been fraudulent or not.