Abstract
This research explores the requirements for the distinctiveness of a mark as a condition precedent to registration. In the main, it uncovers and details, on a comparative basis, the test of distinctiveness of a mark as established under European and South African trade mark laws. As in the case of many other expository researches, the study relies on statutes, case law and scholarly writings, and analyses their contents. The study thus leans towards the qualitative approach and employs a constant comparative analytic tool to examine patterns of relationships between the two jurisdictions in respect of the [test] for “distinctiveness” of a trade mark. Key among its findings is that both South African and European trade mark laws define a trade mark in terms of its ability to distinguish. Such distinctiveness may either be inherent or acquired through use. This similarity in concept stems from the view that the definition of a trade mark, and the provisions relating to registrability of a mark in the European Directive, had a considerable influence on the drafting of the 1993 South African Trade Marks Act. Nonetheless, in spite of these areas of convergence between the two jurisdictions, there also exist some differences. A remarkable difference is that European trade mark law no longer requires a mark to be represented graphically as a condition precedent to registration. This change may allow for easy registration of non-traditional marks such as sounds, scent and colours. In contrast, graphical representation remains a requirement under South African trade mark law. Consequently, it is recommended that South Africa may consider following the example of the European Union to modify its trade mark laws in order to sufficiently provide for contemporary challenges of trade mark.