CaseNotes LogoCaseNotes
  • Home
  • Library
  • Research
  • Discussion Hub
  • Wiki
  • Latin Dictionary
  • Question Bank
  • Settings
S

Student

Student Account

South African Law • Jurisdictional Corpus
HomeLibraryResearchQuestionsSettings
Judicial Precedent
Ask AI

Plascon-Evans Paints Limited v Van Riebeeck Paints (Proprietary) Limited

Citation1984 (3) SA 623 (A)
JurisdictionZA
Area of Law
Intellectual PropertyTrade Marks Law
Free account

Get the most out of this judgment

Create a free CaseNotes account to save this case, see how it's cited, get an AI summary, and search 10,000+ SA judgments.

Create free accountor sign in
Civil Procedure

Facts of the Case

The appellant was the registered proprietor of the trade mark "Micatex" in respect of paints and allied products containing mica, registered in 1971 and assigned to the appellant in 1979. The appellant marketed a texture coating under the Micatex mark through an extensive promotional campaign from mid-1978 (costing over R300 000), resulting in a dramatic increase in sales. In about October 1978 the respondent, a competing paint manufacturer, began selling a texture coating under the mark "Mikadek"; after objection, it desisted but thereafter began using "Mikacote" (alongside its housemark "Dekro") from around April 1979. The appellant instituted motion proceedings in the Cape Provincial Division for an interdict against infringement of its registered trade mark (and initially also passing off). Both products contained mica as a minor ingredient. The goods were sold in retail outlets to both trade professionals and lay purchasers. The respondent raised disputes of fact on affidavit. The court of first instance (Van Heerden J) granted the interdict. The Full Bench (Court a quo) allowed the respondent’s appeal (intending to dismiss the application), but failed formally to substitute an order. The appellant obtained leave to appeal to the Appellate Division. By the time of the appeal the respondent had ceased using the Mikacote mark, but the court nevertheless determined the matter.

Legal Issues

  • Whether the use by the respondent of the mark "Mikacote" constituted use "as a trade mark" for the purposes of s 44(1)(a) of the Trade Marks Act 62 of 1963.
  • Whether the mark "Mikacote" so nearly resembled the registered mark "Micatex" as to be likely to deceive or cause confusion.
  • Whether the respondent could rely on the bona fide description defence under s 46(b) of the Act.
  • Whether a final interdict could be granted on affidavit despite the existence of disputes of fact, and the applicable principles for motion proceedings in such circumstances.

Judicial Outcome

The appeal was allowed with costs, including the costs of two counsel. The order of the Full Bench (Court a quo) was set aside and substituted with an order dismissing the respondent’s appeal to that Court with costs. The effect was to reinstate the interdictory relief granted by the court of first instance.

Ratio Decidendi

1. In motion proceedings for final relief, where disputes of fact arise on the affidavits, the general rule is that the court may grant the order if the facts stated by the respondent together with admitted facts justify it. However, the court may also proceed on the applicant’s version where the respondent’s denials are not bona fide or are clearly untenable, or where the respondent does not apply for cross-examination and the court is satisfied as to the inherent credibility of the applicant’s factual averments. 2. For purposes of trade mark infringement under s 44(1)(a), the use of a mark as a “product name” can still amount to use “as a trade mark” if it functions as a badge of origin. 3. A finding of infringement requires proof of a likelihood of deception or confusion among a substantial number of average customers of the goods in question. The comparison between the registered mark and the alleged infringing mark must be made by reference to sense, sound and appearance, in the marketplace context, and with due allowance for the customer’s imperfect recollection. 4. Section 46(b) of the Trade Marks Act affords a defence only where descriptive words are used bona fide to describe the character or quality of the user’s own goods; it does not extend to the use of a fancy name that is a mere device to take advantage of the goodwill attaching to another’s registered trade mark.

Obiter Dicta

The court expressed provisional views on matters that it did not need to decide finally: (a) whether the statutory definition of “trade mark” in s 2 of the Act requires adaptation when applied to s 44(1)(a) in cases where an alleged infringer uses a mark to indicate a connection with the registered proprietor rather than with himself (paras 29–31); (b) whether the “notional use” test (considering how the defendant might fairly and normally use its mark) is appropriate in infringement proceedings, with Corbett JA expressing difficulty with applying it to the defendant’s actual use (paras 38–40); and (c) the observation, without deciding the point, that the fact a person has used descriptive words as a trade mark may not necessarily preclude reliance on s 46(b) (para 50). The court also noted that the passing-off claim had wisely been abandoned (para 6) and that the dispute had become moot because the respondent had ceased using the impugned mark (para 18).

Legal Significance

This is a leading authority in South African intellectual property and civil procedure law. It is the foundational decision on the so-called 'Plascon-Evans rule', which governs how courts should resolve disputes of fact in motion proceedings when a final order is sought on affidavit. In trade mark law, it sets out the comprehensive test for determining deceptive or confusing resemblance under s 44(1)(a) of the Trade Marks Act, emphasising a practical, marketplace-based comparison by the average consumer with imperfect recollection. It also provides the definitive interpretation of the bona fide description defence under s 46(b), holding that the defence is unavailable where a fancy mark is used to exploit the goodwill of a registered trade mark rather than to describe the character or quality of goods.

Case relationship graph

Case Network

Explore 3 related cases • Click to navigate

Current Case
Related Case

Cited By 47 Cases

  • ABT Angaza (Pty) Ltd v MPSA Projects (Pty) Ltd and OthersCase Number: 2025-040248 (unreported)
    Applies

    Court applies the principle that where a respondent does not raise a bona fide dispute of fact, the court must decide the matter on the applicant's version (at…

  • Badenhorst N O v Manyatta Properties Close Corporation and Others[2025] ZASCA 194
    Cites

    Cited for the principle that on motion proceedings a respondent's factual version must be accepted unless it is implausible, far-fetched or untenable.

  • BHP Billiton PLC Incorporated v Jan George De Lange(189/2012) [2013] ZASCA 11 (15 March 2013)
    Applies

    Applied the principle at 634I-635C that in motion proceedings where there is no genuine dispute of fact the evidence must be accepted unless inherently not…

  • BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs2004 (5) SA 124 (W)
    Applies

    Applied for the rule that in applications on notice of motion where disputes of fact arise, final relief may be granted if admitted facts and respondent's…

Practice This Case

Sign up to practise IRAC analysis, issue spotting, and argument building on this case.

  • Cairns Foods Limited v Netrade Marketing (Pvt) LtdJudgment No. SC 106/21, Civil Appeal No. SC 242/20
    Applies

    Applied to establish the test for trade mark infringement, including comparison of marks, assessment of impact on the average customer, and consideration of…

  • City of Cape Town v Really Useful Investments 219 (Pty) LtdCase No: 21106/2014, Judgment delivered 2 February 2018, Western Cape Division, Cape Town
    Considers

    The court considered the rule regarding resolution of disputes of fact in motion proceedings where the respondent's version should be preferred in the absence…

  • Eagles Landing Body Corporate v Molewa NO and Others2003 (1) SA 412 (T)
    Applies

    Applied for the Plascon-Evans principle that where factual disputes arise on affidavits, the version of the respondent must be accepted unless it is so…

  • Felix Mapfumo v Staysun Investments (Pvt) Ltd and CBZ Life LimitedHH 229-13, HC 11379/12
    Cites

    Cited as approving the approach in da Mata v Otto NO regarding the approach to disputes of fact in motion proceedings.

  • Fuzile Mbalane v Ntombomzi Mbalane and OthersCase No.: 02/2025, Eastern Cape Division, Mthatha (unreported, delivered 04 March 2025)
    Considers

    Considered for the general rule on resolving disputes of fact on affidavits in motion proceedings, though the court found it may not be satisfactory in all…

  • George Musanhu v Chipo Munguma and OthersHMA 27-22, HC 301-20
    Cites

    Cited as authority for the court taking a robust approach to decide the matter on affidavit evidence when material disputes of fact arise.

  • Hangklip/Kleinmond Federation of Ratepayers Associations v The Minister for Environmental Planning and Economic Development: Western Cape and OthersCase No: 4009/2008 (Western Cape High Court, Cape Town) - Judgment delivered 1 October 2009
    Cites

    Cited for the rule that on motion proceedings the version of the respondent must be accepted where the applicant cannot contradict it, in the context of…

  • Huruyadzo Mining (Private) Limited v Theuns John Coetzee and OthersHB 130/21, HC 814/21
    Applies

    Applied for the principle that in the event of conflict an applicant must accept the respondent's version unless the allegations are not such as to raise a…

  • H v The Honourable Magistrate Mncube N.O. and AnotherCase Number: 2025-038564 (Gauteng Division, Johannesburg)
    Cites

    Cited for the rules on resolving factual disputes in motion proceedings where final relief is sought, generally resolving disputes in favour of the respondent.

  • Irene Lorna Lawrence v Lorna Van HuysteenCA 95/2024 (High Court of South Africa, Eastern Cape Division, Makhanda)
    Applies

    Applied for the rule that allegations or denials that are far-fetched or clearly untenable can be rejected merely on the papers in motion proceedings.

  • Irene Vlok v Derek Ryan Puchert N.O.Case No: 4357/2024 (Eastern Cape Division, Makhanda)
    Applies

    The court applies the Plascon-Evans test for determining disputes of fact in motion proceedings, including the principle that final relief may be granted on…

  • Jan van Rensburg & Another v Dr Adeo Cloete & AnotherCase No: 8270/09 (Eastern Circuit Local Division) - Unreported judgment delivered 28 January 2010
    Applies

    The court applies the Plascon-Evans test for resolving disputes of fact in motion proceedings where a final interdict is sought, stating that disputes must be…

  • Jonathan Nathaniel Moyo and Others v Austin Zvoma NO, Clerk of Parliament and Lovemore MoyoJudgment No. SC 28/10; Civil Appeal No. 62/10
    Applies

    Court applies the principle that in motion proceedings any disputes of fact must be resolved in favour of the respondent.

  • Josephine Makondora v The Vincent Kanongovere Trust and OthersHH 77-22, HC 4396/20 (Ref cases: HC 4093/18, HC 289/15, HC 8834/14)
    Cites

    The court cited this case for discussion of the options available when a dispute of fact arises in motion proceedings.

  • Kenton On Sea Ratepayers Association v Ndlambe Local MunicipalityCase No: 4341/2014 (ECHC Grahamstown)
    Applies

    Applied for the rule that on motion proceedings, a court considers affidavits for the Respondent and that the Applicant must live with the consequences of the…

  • Leopold Takawira Housing Co-operative Society v Innocent Pedzisai and OthersHH 702-14, HC 3950/13
    Applies

    Court applies the Plascon-Evans procedure that relief can be granted if the facts stated by the applicant together with the admitted facts in the respondent's…

  • Lucinda Wynne Museler N.O. v Shannon Lee Momberg N.O.Case No: 617/2022 (Eastern Cape Division, Makhanda) - Unreported
    Applies

    The court applies the Plascon-Evans rule for resolving factual disputes on the papers, stating that it is obliged to apply this rule when considering disputes…

  • Magret Kasongo and Others v Murowa Diamonds (Pvt) Ltd and OthersHMA 12-20; HC 365-19
    Applies

    Court applies the test that an interdict can be granted only if the facts as stated by the respondents, together with the admitted facts in the applicants'…

  • Maximum Profit Recovery (Pty) Ltd v Sakhisizwe Local MunicipalityCase No.: 1086/2019, High Court of South Africa (Eastern Cape Division, Makhanda), unreported judgment delivered 18 March 2025
    Cites

    Cited in relation to disputes of fact where the Municipality contended that the applicant would not have been entitled to the tender.

  • Meepo Ya Sechaba v Kotze, Jan Louis Koen and Others869/2006, [2007] ZANCHC (29 June 2007)
    Applies

    The Plascon-Evans rule was applied at page 635 C to reject the Department's allegation that the 2001 application was refused on 27 February 2004, as the court…

  • Mfolozi Community Environmental Justice Organisation and Others v Tendele Coal Mining (Pty) Ltd and OthersCase No: 3518/2023P (KZN High Court, Pietermaritzburg)
    Considers

    Mentioned in relation to the test for final relief, requiring establishment of a clear right, though the court applied the interim interdict test instead.

  • Minister of Health and Welfare v Woodcarb (Pty) Ltd and Another1996 (3) SA 155 (N)
    Applies

    Court applied the rule established by Corbett JA that in motion proceedings for final relief where there are disputes of fact on affidavits, the matter must be…

  • National Credit Regulator v First Group Investment Holdings (Pty) Ltd and Another(475/2024) [2026] ZASCA 67 (11 May 2026)
    Cites

    The judgment cites the well-known Plascon-Evans rule to explain the principle, applied in Edcon, that in motion proceedings where disputes of fact arise a…

  • Ndiviwe Dukiso v King Sabata Dalindyebo Local Municipality (K.S.D) and OthersCase No. 2056/2022 (Eastern Cape Local Division – Mthatha)
    Applies

    The court applies the clarification and qualification of the Stellenbosch rule regarding respondent's denial of facts alleged by the applicant to expand…

  • Noxolo Maru and Others v MEC for Transport and Community Safety Eastern Cape and OthersCase No: 272/2024 (Eastern Cape Division – Bhisho)
    Applies

    Court applies the Plascon-Evans rule to disregard Respondents' bald and unsubstantiated denials regarding the Applicants' work duties.

  • Rangarirai Mago v George Rusere and The Minister of Lands, Agriculture, Water, Climate and Rural ResettlementHMA 54-21; HC 258-20
    Cites

    Cited for the principle that a real dispute of fact arises when the respondent denies material allegations and produces positive evidence to the contrary, and…

  • Ricardo Walters v Buffalo City Metropolitan MunicipalityCase No: EL516/2025 (Eastern Cape Division, East London Circuit Court)
    Applies

    Applied the Plascon-Evans rule that where disputes of fact arise on affidavits, final order can be granted only if facts admitted together with respondent's…

  • Siganda Mining Syndicate v Tarum Syndicate and OthersHB 04/26, HCBC 1/26
    Cites

    Cited for the principle that where a final order is sought and there are disputes of fact on the papers, the matter can be resolved on the facts stated by…

  • Sinesipho Dlakavu and Otto Curnick Dlakavu v Mthatha Nine (Pty) LtdCase No. 1710/2019 (unreported, Eastern Cape Division, Makhanda)
    Cites

    Cited for the principle that where there is a dispute of fact on the papers, untenable and implausible allegations may be rejected merely on the papers.

  • Sobralia Beleggings (Pty) Ltd t/a ACDC Express Port Elizabeth and Another v Stanton Marlon Human and AnotherCase No. 4202/2024 (ECHC) (unreported, judgment delivered 3 December 2024)
    Applies

    Court applies the Plascon-Evans rule on factual disputes in motion proceedings, finding that the rule favours the first respondent on disputed facts regarding…

  • South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs: KwaZulu-Natal Provincial Government and Another
    Applies

    Applied the rule in motion proceedings that where facts are in dispute the version of the respondent must be accepted unless it is contradicted or shown to be…

  • S v Zuma and Thales South Africa (Pty) LtdCase no: CCD30/2018 (KwaZulu-Natal Division, Pietermaritzburg)
    Considers

    The court mentions the Plascon Evans principle in passing as potentially relevant to factual disputes on affidavit, but does not apply it as no real disputes…

  • Taljaard and Another v The Land and Agricultural Development Bank of South Africa and Others[2026] ZASCA 29 (17 March 2026)
    Cites

    Cited for the principle that where facts are disputed, a final interdict should be granted in notice of motion proceedings only if the facts stated by the…

  • The Department of Rural Development and Land Reform: Eastern Cape v Katleho Johannes Phahla and Bethwel Ntsikelelo MpunyukaCase No: 178/2021 (Eastern Cape Division, Mthatha High Court)
    Applies

    Court applies the Plascon-Evans principle that an applicant who seeks final relief in motion proceedings must accept the opponent's version unless it does not…

  • The Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and OthersCase no: 5676/2024 (Western Cape Division, Cape Town)
    Applies

    Applied the Plascon-Evans rule that factual disputes must be decided in favour of the respondent on motion proceedings.

  • The South African Legal Practice Council v PonoaneCase no: 4096/2024 (Eastern Cape Division, Makhanda)
    Distinguishes

    The court notes that the approach in disciplinary matters differs from the Plascon-Evans approach to motion proceedings in order to properly establish the…

  • Umfolozi Sugar Planters Limited v Isimangaliso Wetland Park Authority(873/2017) [2018] ZASCA 144 (1 October 2018)
    Applies

    Applied to resolve factual disputes in favour of the respondent in motion proceedings for final relief.

  • Van Willing Funerals CC and Another v Vision Direct 155 (Pty) Ltd t/a TransafricaCase No.: 4132/2023 (unreported, High Court of South Africa, Eastern Cape Division, Gqeberha)
    Applies

    Court applies the Plascon-Evans rule that on motion proceedings where disputes of fact exist and oral evidence is not sought, the version of the respondent…

  • Varichem Pharmaceuticals (Pvt) Ltd v Emcure Pharmaceuticals Limited and The Commissioner General of the Zimbabwe Revenue Authority N.O.HH 388-22, HC 1841/20
    Applies

    Court applies this case for the comprehensive test on likelihood of deception or confusion in trade mark infringement, including that it is sufficient if a…

  • Venganai Musevenzo v Sylvester Ndebele Beji and The City of MasvingoHH 268/13, HC 2793/12
    Applies

    Applied for the principle that in motion proceedings where disputes of fact arise, relief can be granted if the facts stated by the applicant together with the…

  • Wakkerstroom Natural Heritage Association v Dr Pixley Ka Isaka Local MunicipalityCase No: 1765/19, High Court of South Africa, Mpumalanga Division, Middelburg (Local Seat)
    Considers

    Mentioned in the context of the municipality's allegation of factual disputes, but the court found no genuine factual disputes requiring oral evidence.

  • York Timbers Proprietary Limited v The National Director of Public ProsecutionsCase No: A626/2013
    Applies

    Court applies the Plascon-Evans rule for deciding disputes of fact on affidavit in civil proceedings, holding that where facts averred in the applicant's…

  • Zimbabwe Yellow Pages (Private) Limited v E-Directories (Private) LimitedHH 487-22, HC 2799/21
    Applies

    Applied for the test for identity and similarity of marks focusing on the effect and impression on the notional customer.

    • Explore More Cases

    More Intellectual Property cases

    • Inzalo Enterprise Management Systems (Pty) Ltd v Chief Albert Luthuli Municipality(102/2024) [2025] ZASCA 85 (11 June 2025)
    • Pika Chemical & Technical (Pty) Ltd t/a Afritech v Nolte and Others[2024] ZAWCHC 230; [2024] 4 All SA 625 (WCC)

    More South Africa cases

    • 3M South Africa (Pty) Ltd v The Commissioner for the South African Revenue Service(272/09) [2010] ZASCA 20 (23 March 2010)
    • 4 Seasons Logistics CC v Kgotse(1215/2023) [2026] ZASCA 09 (04 February 2026)
    • 4 Seasons Logistics CC v Nicholas Ngwanammoto Kgotse(1215/2023) [2026] ZASCA 09 (4 February 2026)
    • 4-Tune Investments (Pty) Ltd v Kingsgate Body CorporateCSOS 4565/WC/22 (Adjudication Order, 29 November 2023)
    • 68 Wolmarans Street Johannesburg (Pty) Ltd and Others v Tufh Limited(1263/2022) [2024] ZASCA 48 (15 April 2024)
    • 9 on Rydal Vale Court Body Corporate v Pan African Holdings Pty LtdCSOS-4563/KZN/23 (Adjudication Order, 8 November 2023)
    • AAA Investments (Proprietary) Limited v The Micro Finance Regulatory Council and Another2006 (11) BCLR 1255 (CC) (also reported as CCT 51/05)
    • A A Alloy Foundry (Pty) Limited v Titaco Projects (Pty) LimitedCase No. 309/97