Bona fide descriptive use of trademarks (BMW AG v. BW Tech): BW Tech is a motor vehicle repair service business, including, among others, BMW cars. In an advertisement, it made prominent use of the BMW trademark, which yielded a written undertaking from the respondent to cease making unauthorized use of the applicant’s trademarks. However, BW continued its conduct, which led to BMW AG applying to the High Court for an interdict to restrain the respondent from infringing its registered trademarks and from breaching its undertaking. BW Tech argued that its use of the trademark was in line with Section 34(2)(c) of the Trade Marks Act. The Court, however, held that the manner in which the respondent had made use of the trademark did not fall within this exclusion as undue prominence was being given to the BM and BMW trademarks and they were not being used in a manner merely descriptive of what is sold. On the contrary, it was intended to attract customers, thus enjoying an unfair advantage. BMW AG was thus awarded the relief it had sought.
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