clr/1987/1987_1_383.pdf

(1987)Ρ D C lound for the appellants, whereas Nicolaides D J found for the respondents In view ofsuchconflictof opinion the action was dismissed{see section27

(2)ofThe CourtsofJusticeLaw 14/60) Hence thepresent appeal The two main reasons issupport of the judgment of Nicolaides D J were that (

1. a)The productsof the two traders entered the Cyprus, market at about the same time in the year 1962 a factthat negatived suggestions of imitation and the establishment of aright on the part of the appellants toexclusive use of the device, (
2. b)The distinguishabihty of the products of the two manufacturers mainly on accountof the factthat the3 stnpeswere only part of the appellants' trade mark In accordance with thejudgment of Nicolaides, D J the confusion by the adoption of the device of the 3 stripes could only anse from a distance, but not across the counter An additional factor that made confusion unlikely was the_factthatappellants productswere soldfrom special shops The possibility of confusion was made more remote still, in accordance witht the samejudgment, by the additionafter the institution of the action of the word «Jonitexo»on the products of the respondents 5 10 15 It must be noted that finding (
3. a)was based on the evidence of Mr HadjiMichael, the Managing Director and pnncipal shareholder of the respondents, to the effectthat before the respondents' incorporationhe had been manufacturing since 1962 sportswear with the 3 stnpe device This 2 0 version,however,was notcanvassedinthecross-examination ofthe pnncipal or any other witness of the appellants Held, allowing the appeal

(1)The need for scrutiny of Judicial action on appeal becomesall thegreaterinacasewhere thetnalCourtisevenly divided in its appreciation of the evidence and its impact upon the outcome of the case 25

(2)Failuretoput forwardapertinentaspectofthedefencecasetowitnesses for the plaintiff is not necessanly fata! to its validity, but in the absence of a properexplanation oftheomission,theCourt may disregardit,becauseofthe denial ofaproperopportunitytotheplaintifftocontrovertit A lotwilldepend 3 0 on the nature of the allegation omittedtobe putin cross-examination andthe reasons for the omission In this case no explanation was given for the omission hereinabove referredto Koums, Ρ D C was justified in attaching little or no weight to the relevant version ofthe respondents

(3)In any event the inescapable inference on aproper appreciation of the evidence of Mr HadjiMichael isthat the 3-stnpe device was not the adopted mark of his productsof sportswear 35

(4)The tort of passing off is codifiedin Cyprus by s 35 of the CivilWrongs Law, Cap 148 The codificationisnot exhaustive,butmay be supplemented by the pnnaples relating to the tort as known in English Law Our case law 40 suggeststhats35 notonly reproducesthecorrespondingEnglishtort,buthas the same range of application asthis tort finds in England 384 l.C.L.R. Adidas v.Jonitexo Ltd.

(5)Fortheplaintiff tosucceed inpassingof actionhe mustprove: 5 10 (

1. a)A right to the use of the mark to the exclusion of the defendant established by reference to the association of the mark with the productsuf theplaintiff Theaccrualofsuchrightdependsonthenexusbetweenthemark and theproduct itbrands Theassociation must bestrongenough asforthe mark tobeofitselfsuggestiveoftheoriginofthegoods Themeansofforging the association are not limited ina specific way Whether the necessary link between the mark and the product exists isa question of fact. Evidenceof user, the length of it and the reactions of the purchasing public are highly relevant tothedetermination of the issue (b)Imitation orcopying ofthemarkoftheplaintiff bythedefendants inthe processof manufacture orsalesof the products. 15 20 2o 30 35 (
2. c)Likelihood of confusion on the part of the ordinary purchaser ansing from the imitation of the mark The lawisnot concerned with the scrupulous purchaser, but with the ordinary purchaser, who is apt to be swayed by images The question - which is one of fact - is not the one asked by Nicolaides. DJ .namely whether an ordinary purchaser can, on accountof differences inthemarks,distinguish between therivalproducts,but whether theassociation between theproductsoftheplaintiffs andthepartofthemark Imitated is so strong as to create a likelihood of confusing the ordinary purchaser about the ongm of theproductsof the defendants. (d)Damageresultingfrom suchlikelihoodofconfusion. Whenever because oftheimitationtheordinarypurchaserislikelytobeconfused abouttheorigin ofthegoods,damage ispresumed tooccurintheabsence ofevidencetothe contrary

(6)Inthiscase the evidence established adefinite association between the 3-stripes and appellants' products. The Court is disinclined to allow a manufacturer tomonopolize amarkconsistingofstnpes, butarighttoitsuse may be established by a long and consistentuse on a largescale.Abalance must be kept between the need to sustain free competition and that of protecting the public from imitations. In this case and in the light of the evidence that the imitation waslikely to confuse the public the line must be drawn infavour ofthe appellants.Intheabsence ofevidence tothe contrary damageispresumed.Intheresulttheappealisallowedandaninjunction will beissued intheir favour. Appealallowedwithcostshereand intheCourtbelowin favourofthe appellants. Casesreferredto: 40 Pyigasv.Stavridou

(1969)1C.L.R.332; Andreaand Othersv.Dourmoush, 1962 C.L.R.7; 385

(1987)Adidasv. Jonltexo Ltd. Bank of Cyprus(Holdings)v. TheRepublic

(1985)3 CLR

1. Evren Warning ΒV. ν Townsend and Sons 11979]2All ΕR
2. HadpKynacos Co ν UnitedBiscuits

(1979)1CLR

1. Universal Advertising and PublishingAgency and Others ν Vouros, XIX C LR
2. 5 JonitexoLtd ν Acndas

(1984)1C LR

1. Spalding ν AW GamageLtd [1914-15]All ΕRRep 147, Ο Τ Limited ν CummingandCo [1915J32RPC 69 PaytonandCo Ltd ν Snellmg.Lambartand Co Ltd [1901)AC 308; CadburySchweppes ν PubSquashCo [1981]1All ΕR 213 10 Appeal. Appeal by plaintiffs against thejudgment of the DistrictCourtof Nicosia (Kourris, Ρ D.C. and S. Nicolaides, D.J.) dated the 31st May, 1984 (Action No 5183/80) whereby theiractionfor anorder restraining thedefendants from marketingtheirsportswear with3stripes on the outer side in order to stop them from passing off theirwear as those of the appellants was dismissed. 15 M.Montanios withG. Platritis, for the appellants. St. Brotocritou (Mrs.), for therespondents. Cur. adv. vult. 20 A. LOIZOUJ.: The judgment of theCourtwillbe delivered by Pikis, J. PIKISJ.: The passing off action of theappellants (plaintiffs) the manufacturers of Adidas sportswear, against the respondents (defendants), local manufacturers ot sportswear, divided the Full 25 DistrictCourtof Nicosia composed of Kourris,P.D.C., (ashe then was), andS. Nicolaides,D.J.ThePresidentof theCourtfound for the appellants and approved an injunction restraining the respondentsfrom marketingtheirsportswear with 3-stripes onthe outer side in order tostop them passing off their wear as those of 30 appellants. Earlier the learned President found that appellants proved arighttotheexclusiveuseof the3-stripe device inthe way portrayed on theirproducts andconcluded thatinmarketingtheir goods with asimilar device, therespondentsbreached therightof appellants safeguarded by s. 35 of the Civil Wrongs Law, Cap. 35
2. An association had been established between the mark and 386 l.C.L.R. Adidas v.Jonitexo Ltd. Pikis J. the sportswear of appellants sufficiently strong to entitle them to protection from imitation or copying of the mark. Furthermore, Kourris, P.D.C. found that the copying or imitation waslikely to confuse the ordinary purchaser about the origin ofthegoods and 5 thereby mistake the products of respondents as Adidas sportswear. In face of the likelihood of confusion he inferred the sustenance of damage on the part of the appellants and found their case proven, whereupon he made an injunction in terms appropriate to stop the respondents passing off their goods as 10 thoseofappellants. For hispart Nicolaides, D.J., while acknowledging that the 3stripes in the way portrayed on their sportswear was a distinguishing feature ot the products of appellants, nonetheless he found forthe respondents fortwo main reasons: 15 20 (a) The simultaneous and coincidental use of the 3-stripe device by both parties. Inaccordance with hisjudgment, the products of the two traders entered the Cyprus market at about the same time in the year 1962, a fact that negatived suggestionsofimitation orcopyingandtheestablishmentofa nght on the part of the appellants to exclusive use of the device; and (b) The distinguishability of t'.ie products of the t-vo manufacturers, mainlyonaccountofthefactthatthe 3-stripes were onlyparrt ofthe mark ofthe appellants. 25 Themarkoftheappellantswascompounded ofacloverandthe word Adidasinaddition tothe3-stripes, a fact that setthem apart and made them easily distinguishable from the sportswear of the respondents that carried only the 3-stripe device. As can be discerned from the judgment of Nicolaides, D.J., the 3-stripes 30 were not in themselves a separate or a distinguishable feature of theproductsoftheappellants;therefore, theadoption ofasimilar devicebytherespondentscouldnotconfuse thepurchasingpublic about the origin of their goods or mistake them for those of the appellants. The confusion could only arise, asthe learned Judge 35 pointed out,from a distancesuchasthatordinarilyseparatingthe spectators'standfrom thefootballpitchbutnotacrossthecounter. Anadditional factor that made confusion unlikely,inthe opinion of the learned Judge, was the fact that the products of the appellantsweresoldfrom specialshopsbearingoutsidethe name 40 of Adidas. The possibility of confusion was made more remote 387 Pikis J. Adidas v. Jonitexo Ltd.

(1987)still, in accordance to Nicolaides, D.J.,bytheaddition after the institutionoftheactionoftheword«Jonitexo»onthespotswearof the respondents. Kourris, P.D.C., remained unimpressed by the addition, not least because some of the sportswear of the appellants toohadnames added tothe3-stripe device, such as, 5 «John Barringdon» and «Squash» and ruled thataconfusionwas likelyand made aninjunction asthe only effective wayto protect theinterestsofthe appellants. Inviewofthe conflict ofjudicial opinion, the Court applied the provisions ofs.27 ofthe Courts ofJustice Law (14/60) and gave 10 judgment for the respondents. Section 27

(2)enacts that inthe event ofthetrial Court being evenly divided, judgment shallbe given against the party on whom the burden ofproof lies.Andas theburden ofproof inapassingoffaction lieson theplaintiffs,the actionwasdismissedasan inevitableincidentoftheapplicationof 15 the aforementioned provisions of the law.Needless to say the need for scrutiny of judicial action on appeal becomes allthe greater in a case where the Court is evenly divided in its appreciation ofthe evidence and itsimpact upon theoutcomeof thecase*.Andwewereinvitedtoviewthefindingsandinferences 20 drawn bytheCourt, that is,by Nicolaides, D.J., with theextra caution warranted bythe division ofjudicial opinion. Appellants challenged the finding that Mr.HadjiMichael, the Managing Director and principal shareholder ofthe respondents, manufactured and marketed long before theincorporation ofthe 25 respondentcompany in1978,sportswearwiththe3-stripedevice. Relying onhis evidence, Nicolaides, D.J., found that the witness had manufactured and marketed sportswear with the 3-stripe device asfar backas 1962,theyearinwhich appellants' products were first marketed in Cyprus. The finding was contested as 30 running contrary to the weightofthe evidence and as one hardly warranted bythe testimony ofMr. HadjiMichael himself. Firstly, our attention was drawn tothe fact that the above version ofthe respondents was notcanvassed inthecross-examination ofMr. Sbleas, the principal witness or any other witness of the 35 appellants. Infact, nosuggestion had been made toanyoneof them thatthe predecessors ofrespondents marketed sportswear withthe3-stripe device atanytimepriortothe incorporationof the company. Ofcourse, fatf-.e toputforwardapertinentaspect *See NicolasPyigasv.TheodoraCharalambousStaviidout1969)1C.L.R.33k,336;Anion* AndreaandOthersv.SadiDouimoush,1962C.L.R.

1. 388 1.CL.R. Adidas v.Jonitexo Ltd. PiUsJ. of the defence case towitnesses for the plaintiff isnot necessarily fatal toitsvalidity*.Alotwilldepend onthenatureoftheallegation andthereasonsfornotraisingitinthecourseof cross-examination of the witnesses of the adversary. In the absence of a proper 5 explanation of the omission, the Court may justifiably disregard factual allegationsnotputtowitnessesoftheadversarybecauseof the denial ofa proper opportunity tothe lattertocontrovert them inevidence.Libertytocontrovertthecaseoftheothersideisatthe coreoftheadversarialsystemofjusticepremised onthe elicitation 10 ofthetruth through the process ofconfronting theadversary with every materia! aspect of. party's case. In the absence of such confrontation, the Court isleft with only one sideof the story and may, on that account, disregard itas one-sided and incompatible withtherightof hisopponent tobe afforded aproper opportunity 15 to put forward his case too on the subject under controversy. In thiscasenoexplanation whateverwasgivenastothefailureofthe respondents to propound this aspect of the case in the crossexamination of witnesses of the appellants, in face of which the Court was justified as Kourris, P.D.C., did, to attach little or no 20 weighttoit. Not that the evidence of Mr. HadjiMichael materially changed the complexion of the case for the respondents before the trial Court in that as Kourris, P.D.C., noted in his judgment, his testimony put at its highest, established no more than that Mr. 25 HadjiMichael began since 1962 to manufacture occasionally sportswear withthe3-stripesonaverylimitedbasisandsubject to aspecificrequestofpurchasers.Appellantsdoubtedthe relevance of evidence pertaining to the manufacture of sportswear by Mr. HadjiMichael priortothe incorporation ofthe company, an entity 30 separate and distinguished form itsshareholders -Bank of Cyprus (Holdings) v. Republic**. A rider to this argument stems from appreciation ofthefact thattherelevance ofsuch evidence,aside from itsworth, liesinthe fact that ittendstonegative the claimof the appellants to exclusive use of the 3-stripe device in the mark 35 and notinthe linkbetween thecompany anditsshareholders. Be thatasitmay, Ifinditunnecessarytoprobe thequestion further in viewoftheinconclusivenessofthecaseoftherespondentson the subject and the inevitability of the relevant findings made by Kourris,P.D.C. •SeePhtpson,llthEd.,pani.544,p.
2. ••

(1985)3C.LR.1883. 389 Pilds J. Adidas v. Jonitexo Ltd.

(1987)Areview of the evidence of the respondents on theproduction of sportswear with the3-stripedevice prior tothe incorporationof the company, establishes no more than the following:(

1. a)A small quantity of sportswear were manufactured by Mr.HadjiMichael aided by hiswife from about theyear 1962. Production was on a limited scale and the3-stripeswere only added attherequest of individual customers. Itwas notamark of the products of Mr. HadjiMichael. 5 (
2. b)Production dropped further still between the years 1964-1969. At that period of time, Mr. HadjiMichael was a 10 full-time salaried employee at a Nicosia sports shop, only engaged inthe manufacture of sportswear inhisspare timein order tosupplement his income.The business started by Mr. HadjiMichael in 1969 was ruined in 1974 in the wake of the Turkish invasion. Hisshop atHermesStreet was occupied by 15 the Turkish forces. The inescapable inference on a proper appreciation of the evidence is thatthe 3-stripe device was not the adopted mark of the products of the sportswear of Mr. HadjiMichael or any other local manufacturer of sportswear for that matter. The 3-stripe 20 device was adopted asamarkofthesportswear manufactured and marketed by the respondents after the incorporation of the company. Other local manufacturers too seemingly adopted the same mark for their products after the institution of the present proceedings. Mr.HadjiMichael himself admitted in hisaffidavit in 25 opposition to an application for an interim order thatprior to the incorporation of the company only occasionally were sportswear manufactured by himself branded with the 3-stripes. This occurred,as hesaid, 'ενίοτε',thatis,from timetotimeatuncertain intervals. On those occasions too he was, on his own evidence, 30 primarily acting on the instructions and at the request of specific customers. The 3-stripes were not the adopted mark for his products. This is an appropriate stage to examine and reflect upon findings common in the judgment of both members of the Court 35 referrable to the quality and reputation of the sportswear of appellants. Their sportswear were highly reputed for their quality and were successfully marketed in very many countries. A wide range oftheirproducts was continuously marketed inCyprus since 1962. Over theyears they acquired high reputation and captured 40 390 I.C.L.R. 5 Adidas v. Jonitexo Ltd. Plkls J. a big part of the Cyprus market. Such is the popularity of their sportswear that a great percentage of secondary school children show preference and wear them in a variety of circumstances. Their sportswear are extremely popular among athletes too, as wellasthe general public,rated asqualitative sportswear. Nowweshalldealwiththesignificance ofthe3-stripesaspartof the markofthesportswear oftheappellants.Withrare exceptions their products are uniformly branded with the 3-stripes as the ensign oftheir wear.Aclover and thewordAdidascomplete the 10 mark with which they brand and have branded their wear since first introduced inCyprusand seer-ingly other countriestoo.The 3-stripes feature prominently and constitute the hallmark of theirproducts.Fromadistance itisthe onlynoticeable partofthe mark. A visual inspection of the products of the rival traders 15 consistingofExhibits4,5 and6,and 7,8,9 respectively, confirms the testimony of a number of witnesses that the 3-stripes is the prominent feature ofthemarkofappellants.Thecomparison also confirmed the similarity, if not identity, of the design of the 3stripes featuring on the sportswear of the two manufacturers. 20 Advertisement catalogues of the appellants further indicate that the3-stripes feature on nearlyallthe products ofthe appellants. Nicolaides, D.J., as earlier indicated, ruled against the risk of confusion or more appropriately still,found that possibility to be remote or inconsistent because of amenity on the part of the 25 purchasing public to distinguish between the wear of the two manufacturers on account of the addition of the clover and the word Adidas on the sportswear of appellants. Thus an essential ingredient of the tort of passing off was found to be missing disentitling the appellants from succeeding in the action. Only 30 from a uistance could theproductsofappellants and respondents be confused, an immaterialfactor asthe ordinarypurchaserisnot expected to make decision tobuyfrom merelyseeingproducts at such distance. Any confusion that might be engendered from a distance would be putrightbythe differences inthe marksof the 35 rivalsportswear on closernoticeacrossthe counter. Appellants disputed on the one handthevalidityof the above finding and doubted its relevance on the other. In their submission,theJudgemisdirectedhimselfastothe considerations relevanttohisdetermination, amisdirectionthatledhimtoattach 40 undue importance to the amenity of the purchasing public to 391 PikisJ. Adidas v. Jonitexo Ltd.

(1987)distinguish between the nval products upon closer scrutiny In order to appreciate the conflicting submissions on this most important aspect of the case, we must address ourselves to the elements of the tortof passing off injuxtaposition tothe evidence beanngonthesubject Thetortofpassing off isdesigned toprotect 5 the property of the owner, if any, in the mark or get up under which his goods are sold or displayed for sale Fortheowner, his agents or assignees, to succeed in apassing off action, they must establish such association between the mark and the products as to entitlethem touse ittotheexclusion of othermanufacturers or 10 traders The association must, as we perceive the law on the subject, be strong enough as for the marktobe of itselfsuggestive of the ongin of the goods Itmust be linked to the goods of the owners, though itneed notnecessanly indicate theirprovenance The mark orget up need notadhere toany particularpatternand 15 may be wholly descnptive Thegenesis of thenght tothe use of a mark, regarded in law as a quasi property nght, is dependenton the nexus between theparticularmark andthegoods Norarethe means of forging an association between the two limited in any specific way Itissettled thatanassociation may be established by 20 a wide vanety of means, including an advertisement campaign* Whether thenecessary linkexistsbetween themarkandthe goods itcharactenzesisaquestion of fact Evidence of user,thelengthof it and the reactions of the purchasing public is highly relevant to the determination of the issue Ultimately the accrual of a nght 25 entitling the owner to protection in the use of the mark is, we repeat, dependent on the nexus between the mark and the products it brands The tort of passing off as defined by English law, is codified in Cyprus by s 35 of the Civil Wrongs Law In point of fact it is 30 modelled on the corresponding English tort and purports to reproduce itsprovisions as noticedinHadjtKynacos Co ν United Biscuits** Ithas been held thatthe codification of thetortins 35 is not exhaustive, it may be supplemented by reference to the pnnaples of the tortas known toEnglish Law*** 35 Section 35 of the Civil Wrongs Law provide* «Any person who by imitating the name Ηscnption,sign, label orotherwise causes orattemptstocau.seanygoods tobe mistaken for thegoods of anotherperson,so astobe likelyto •See, EvrenWarningΒ V ν Townsend& Sons [1979}2 AllΕR 927 "

(1979)1 CLR 689 '"Universal Advertisingand PublishingAgencyand Othersν Vouros, XIXC LR 87 392 1.C.L-R. 5 Adidas v. Jonitexo Ltd. Pikis J. lead anordinary purchasertobelievethatheispurchasingthe goods ofsuch otherperson,shall commitacivilwrong against such other person: Provided that no person shall commit a civil wrong by reason only thathe uses hisown name inconnectionwiththe sale of any goods». Our caselaw suggests that s. 35 not only it reproduces the corresponding English tort,but has thesame range of application as thistortfinds inEngland*.Atthecoreof thetortisthe likelihood 10 of the ordinary purchaser confusing the products of the imitator with those of the plaintiff. The copying or imitation need not be fraught with a motive to bring about confusion**; nor is proof of fraudulent intention an indispensable element of the tort though the presence of such intentionmay be of assistance tothe plaintiff 15 in establishing the possibility of deception***. Forthe plaintiff to succeed in apassing off action he must prove: (

1. a)A right to the use of the mark to the exclusion of the defendant established by reference the association of the markwith theproductsof the plaintiff. 20 (
2. b)Imitation or copying of the mark of the plaintiff by the defendants in the process of manufacture or sale of the products. (
3. c)Likelihood of confusion on the part of the ordinary purchaser arising from the imitationof the mark; andlastly, 25 (d)Damageresulting therefrom. Notwithstanding the similarity of the3-stripes displayed onthe sportswear manufactured by therespondentstothe3-stripes used as part of the mark of the appellants, Nicolaides, D.J. ruled out thepossibility of confusion taking theviewthattheothertwoparts 30 of the markof theappellants helped toidentify theirproductsand made them distinguishable from those of the respondents. Only from a distance could the sportswear of the two parties be confused, long enough toobscure the presence of the clover and *See, interalia. HadjiKynacos Co ν United Biscuits

(1979)I CLR 689. Jonitexo Ltd v. Adidas

(1984)1CLR 263 Thedecisiongiven inthe appealof the respondentsinthiscase against the mtenm ordermade at the instanceof the appellantsafterthe institution of the presentproceedings "See, Spaldingν A. W CamageUd (1914.15)AllΕR Rep 147. "'See.O T. Limitedv.Cumming& Co {1915)32 R.P.C 69 393 Plkis J. Adidas v. Jonitexo Ltd.

(1987)the word Adidas Theordinary purchaser could notbe misled across the customer's counterasthe last two aspects ofthemark of theappellants would easily lead him to identify appellants' products Itissettled thatimitationofpartofa markmay,depending onits 5 effects, sustain an action of passing off* Whether theordinary purchaser islikelytobe confused by thecopying orimitation ofthe mark ofanother,ispnmanlya question offact dependenton the prominence ofthe part ofthemark imitated and its implications Nicolaides, DJ , asked, with respect, the wrong question in 10 determining the likelihood of confusion The question isnot whether ordinary purchasers can, onaccountofdifferences inthe marks distinguish between thenval wear - thequestion askedby the Judge -but whether the association between the products of the plaintiffs and the part of the mark imitated issostrong asto 15 create alikelihood ofconfusing the ordinary purchaser about the ongin of the products of the defendants If the image ofthe productsoftheplaintiff issufficiently associated withthepartofthe markimitated,imitationthereof may affect theordinarypurchaser in avanety ofways astothe ongin of the goods Ultimately, the 20 question iswhether the association ofthe mark with the products is strong enough asfor the display ofthe mark tonngabell inthe mind of the ordinary purchaser about the ongin of the products We are notconcernedwith thescrupulous purchaser, but withthe ordinary purchaser who isapttobeswayed byimages 25 In ourjudgment the evidence astothe likelihood of confusion on thepartof theordinary purchaserfrom thecopying orimitation of the3-stnpe device used onthewear of theappellants was overwhelming The 3-stripes in the way portrayed on the sportswear of the appellants were the hallmark of their products 30 pointing to their ongin, that is,that they were manufactured by Adidas The other two features ofthe markofthe appellants,that is,theclover and theword 'Adidas', werelessprominentandtheir absence from theproducts of the respondents didnot serveto distinguish them from those of the appellants In fact, from a 35 distance they were unnoticeable There wasa definite association between the 3-stnpes in the *See. Payton&Co Lfd ν Snellmg Lambard&Co Ltd f1901}AC 308 311 394 I.C.L.R. Adidas v. Jonitexo Ltd. Pikis J. way devised and the products of the appellants. Naturally the Courtisdisinclined toallowamanufacturertomonopolize amark consisting of stripes, a device lacking uniqueness initself; buta rightto itsuse may be established arising from long andconsistent 5 user ona largescale.Thecaselawsuggeststhatabalance must be kept between the need tosustain free competition onthe one hand, and that-of protecting the public from imitations on the other*. In this case the line must be drawn onthe side of the appellants in the light ofevidence thatthe imitation was likelyto 10 confuse the public in their choice ofsportswear. Some evidence comes from the respondents themselves as to the implicationsof cessation of the imitation. There isevidence coming from their partthatduringtheperiod thattheinterimorderwas operative and on that account forbidden from exporting theirproducts with the 15 3-stripe device, their sales dropped dramatically. Althoughthe evidence is notdirectly relevant tothe implicationsof imitationof the mark of the appellants by the respondents intheCyprus market itis suggestiveof the reactionsofthepurchasing public in a wider sense tothe use ofthe mark. 20 About the fact ofimitation there canbe no doubt. An identical 3-stripe device to that of appellants was portrayed on the sportswear of the respondents.Norcanthere be any doubt about thefact thatrespondentscompetedfor thepreference of thesame purchasing public, those interested in the acquisition of 25 sportswear. Inthetotality of the evidence on recorditcanbe fairly inferred thatby thecopying orimitationof the3-stripedevice marking the qualitative sportswear of the appellants, respondents soughtto pass off their goods asthose ofthe appellants and that must be 30 stopped/as Kourris,P.D.C., decided. Nofinding of the sustenance of specific damage isnecessary in ordertoupholdapassingoffaction.Damageispresumed tooccur intheabsence of evidence tothecontrary,andnonewas givenin this case, whenever because of the imitation, the ordinary 35 purchaserislikelytobe confused abouttheoriginof the goods**. Theadditionof theword «Jonitexo» didnot,as Kourris,P.D C , noted, remove the likelihood ofconfusion asthe appellants too 'CadbuiySchweppesv PubSquashCo 11981} 1AIIE.R 213(PC) "See, interaha, Keriy'sLawofTradeMarksand TradeNames, 10Ed, para.16-04.ρ 364 395 Plkis J. Adidas v.Jonitexo Ltd.

(1987)occasionallyaddnamestothe3-stripedevice.Inourjudgmentthe order approved by Kourris, P.D.C., was duly warranted by the need toprotect the infringed rightsof the appellants. In the result the appeal isallowed with costshere and in Court below(foroneadvocate).ThejudgmentofthetrialCourtfounded on the decision of Nicolaides, D.J., issetaside and substituted by thefollowing order, couched alongthe linesapprovedbyKourris, P.D.C.:- 5 The respondents (defendants) Jonitexo Ltd., are hereby restrained personally, through their servants, agents orassignees, 10 from manufacturing, producing, selling or offering for a sale, distributing or in any other way dealing with articles of clothing and more specifically sportswear, inparticular, shorts,track-suits, T-shirts, inthe Cyprus marketbearing ontheirexternalsidethe3stripe device appearing on the products oftheappellants (Adidas 15 Sportshuhfabriken AdiDasslerKG.,of Germany) orany variation thereof. Appeal allowed. Orderforcosts as above. 396