Yair Shimansky and My Light Holdings (Pty) Ltd v Browns the Diamond Store (Pty) Ltd

The first appellant, Yair Shimansky, is the registered proprietor of the trade mark EVOLYM in class 14, used on engagement rings, wedding bands and jewellery sold exclusively through Shimansky stores. The second appellant, My Light Holdings (Pty) Ltd, operates the Shimansky jewellery business. The respondent, Browns the Diamond Store (Pty) Ltd, used the mark EVOLVE on men’s wedding bands sold in Browns stores nationwide. After seeing an advertisement for Browns’ EVOLVE rings in the Sawubona in-flight magazine, Shimansky launched an urgent application in the Western Cape High Court seeking an interdict and ancillary relief, alleging that the EVOLVE mark infringed the EVOLYM trade mark under section 34(1)(a) of the Trade Marks Act 94 of 1993. The High Court dismissed the application, finding no likelihood of deception or confusion, and Shimansky appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The case reaffirms and synthesises South African trade mark infringement principles, particularly the requirement of a global assessment of marks and the role of the average consumer in determining likelihood of confusion. It highlights that partial similarity in word marks, even where the registered mark is invented, is insufficient without a real likelihood of confusion, especially in the context of high-value, carefully considered consumer purchases.