Cochrane Steel Products (Pty) Ltd v Jumalu Fencing (Pty) Ltd

Cochrane Steel Products (Pty) Ltd and Jumalu Fencing (Pty) Ltd are competitors in the manufacture and installation of perimeter security fencing. Cochrane is the registered proprietor of the trade mark ‘CLEAR VU’ in Classes 6 and 37, subject to disclaimers permitting the bona fide descriptive use of the words ‘clear view’. Cochrane alleged that Jumalu infringed its trade mark by using the words ‘clear view’ on billboards and its website to describe Jumalu’s ‘Clamberprufe’ fencing products, and that such use also amounted to passing-off. Jumalu contended that its use of ‘clear view’ was bona fide, descriptive of the characteristics and aesthetics of its fencing, and protected by both the statutory disclaimer and s 34(2)(b) of the Trade Marks Act 194 of 1993.

The appeal was dismissed with costs.

The case reaffirms key principles of South African trade mark law concerning disclaimers, descriptive use, and the limits of trade mark monopolies. It underscores that registration of a composite mark containing descriptive elements does not entitle the proprietor to prevent competitors from making bona fide descriptive use of those elements, and cautions against using trade mark or unlawful competition claims to secure impermissible monopolies over ordinary language.