Your brand is often worth more than anything else on your balance sheet. Customers choose you because they recognise your name, logo and get-up, and trust what they stand for. When a competitor starts trading under a confusingly similar name, that trust is diverted, and every month that passes makes the problem harder to unwind.
South African law gives brand owners two main tools to stop this: an action for trade mark infringement under the Trade Marks Act 194 of 1993, and the common law action for passing off. They overlap, but they are not the same, and the one you can use depends largely on whether you registered your mark.
A recent judgment of the Supreme Court of Appeal shows how these principles play out in practice, and why small and regional businesses can win, even without a registered trade mark, if they have the evidence.
Trade mark infringement: the advantage of registration
A registered trade mark gives its owner an exclusive right to use the mark for the goods or services for which it is registered. Registration lasts for ten years and can be renewed indefinitely. Section 34 of the Trade Marks Act sets out the main forms of infringement:
- Identical or similar mark, same goods or services. Unauthorised use of an identical mark, or one so similar that it is likely to deceive or cause confusion, for the goods or services covered by the registration.
- Similar goods or services. Use of an identical or similar mark for goods or services that are so similar to the registered ones that confusion is likely.
- Dilution of a well-known mark. Use of an identical or similar mark in a way that takes unfair advantage of, or harms, the distinctive character or repute of a registered mark that is well known in South Africa, even where there is no confusion.
The key benefit of registration is that you do not have to prove that you have a reputation. The certificate is your starting point. The court compares the marks and the goods or services, and asks whether the average customer, with imperfect recollection, is likely to be confused.
The Act also offers specific remedies, including an interdict, removal or delivery up of infringing material, and damages or, instead of damages, a reasonable royalty. The royalty option matters because actual losses from infringement are often difficult to prove.
Passing off: protecting an unregistered brand
Many businesses never register their names or logos. They are not without protection. Passing off is a form of unlawful competition. It occurs when one business represents, expressly or by implication, that its goods, services or business are those of another, or are connected with them.
To succeed, the brand owner generally has to prove three things:
- Reputation. The name, mark or get-up has acquired a reputation among a substantial part of the relevant public, so that it is associated with the claimant’s business.
- Misrepresentation. The other party’s conduct is likely to make members of the public believe that its business is, or is connected with, the claimant’s.
- Damage. The misrepresentation causes, or is likely to cause, harm, such as diverted customers or damage to goodwill.
The difficulty is evidence. Reputation must be proved, often with turnover figures, advertising spend, customer evidence and examples of actual confusion, and it may be limited to a particular region.
A recent example: the “Fire Logic” judgment
In Logik Group Africa (Pty) Ltd t/a Fire Logik v Fire Logic (Pty) Ltd [2025] ZASCA 164, decided on 28 October 2025, the Supreme Court of Appeal upheld an interdict preventing a newer company from trading as “Fire Logik” in the Eastern and Western Cape. The respondent, Fire Logic, had operated a fire protection business in those regions since 1994. The claim was based on passing off.
Several points from the judgment are useful for business owners:
- Reputation can be inferred from trading history. Decades of trading, substantial turnover, advertising and industry accreditation were enough to establish reputation.
- Actual confusion is powerful evidence. Orders, enquiries and emails sent to the wrong company helped prove that the names were likely to mislead customers.
- Bare denials do not help. A respondent who simply denies the facts, without engaging with the evidence, is unlikely to defeat the claim.
- Protection may be territorial. Because reputation was proved only in two provinces, the interdict was limited to those provinces. A registered trade mark, by contrast, applies nationally.
The case also illustrates a common pattern: the later business had indicated years earlier that it would change its name but continued to use it. Delay and unfulfilled undertakings tend to count against the party relying on them.
Company names and domain names
Registering a company name with the CIPC does not give you a right to use that name as a brand if it infringes someone else’s trade mark or amounts to passing off. The Companies Act 71 of 2008 also allows an interested person to object to a company name that is confusingly similar to their own name or trade mark, through the Companies Tribunal.
Domain names and social media handles can form part of the get-up a court considers. For disputes over .co.za domain names, there is also a specific alternative dispute resolution process.
What to do if someone is using your brand
- Gather evidence immediately. Take dated screenshots, buy samples, and keep every misdirected email, call log and customer comment that shows confusion.
- Check your rights. Confirm which marks are registered, in whose name and in which classes. If you have no registration, collect evidence of reputation: turnover, advertising spend, years of use and regions served.
- Send a letter of demand. A clear, well-supported letter resolves many disputes. Ask for written undertakings and a reasonable deadline.
- Act without delay. Delay can weaken an application for an interdict and allows the other party to build its own reputation.
- Consider urgent relief. Where the harm is ongoing and serious, an urgent interdict may be appropriate.
- Register for the future. File trade mark applications for your key names and logos, so that you do not have to prove reputation next time.
If you receive a letter of demand
Do not ignore it, and do not respond with a bare denial. Take advice on whether the claimant’s mark is registered, whether the marks and goods are truly similar, and whether you have a defence, such as prior use or honest use of your own name. A negotiated rebrand on a sensible timetable is often far less costly than litigation that ends in an interdict and a costs order.
How O’Reilly Law can help
We help businesses protect their brands, from trade mark clearance searches and filing strategy to enforcement. We send and respond to letters of demand, negotiate coexistence and rebranding agreements, and bring and defend applications for interdicts based on trade mark infringement and passing off. We also advise on company and domain name disputes.
Contact us to protect your brand or respond to an infringement claim.
Related reading: Intellectual property protection in South Africa · Urgent interdicts in South Africa
This article is general information and not legal advice. Correct as at October 2026.