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Distinctiveness gained as a result of commercial acceptance occurs when a trademark is seento represent a particular company, merchandise or certain service in the market place. Theterm ‘commercial acceptance’ may be locally or nationally defined. Where the registration of atrademark requires commercial acceptance, however, nationwide acceptance has to beproved.When various trademarks collide, with the effect that one falls within the protective sphere ofanother, assuming all other necessary requirements for the protection of marks have beenmet, the mark with the later priority must give way to the mark with the earlier priority. Theright of priority starts on the day an orderly application has been lodged. A danger ofconfusion arises when the use of a trademark allows it to be wrongly classified.Whether such a mistake has arisen is a question of law and is judged objectively. A danger ofconfusion in its narrowest form takes place when both trademarks are connected to oneenterprise. Such a situation means there is the danger that the trademarks may be confusedwith one another. This is termed ‘direct’ danger of confusion.A different situation arises where, although the trademarks remain distinct, they may beassigned to the same firm due to their close similarities. This is termed ‘indirect’ danger ofconfusion. A danger of confusion in its widest form occurs when the trademarks involved areowned by different enterprises. Due to their similarities, however, a strong connectionbetween the enterprises is assumed.Trademark protection is established by registration with the Trademark Register. Registrationis preceded by a written application to the Patent Office. The Patent Office undertakes adouble test of legality, checking first the legality and then proceeding to test for similarities.If the trademark is granted by the Patent Office, it is protected for a term of 10 years, whichcan be repeatedly renewed by re-registration. In accordance with article 29 of the TrademarkAct, a trademark may expire for a number of reasons, first and foremost on the request ofthe trademark owner.Expiration is also possible through lack of re-registration, as well as a decision of the PatentOffice Revocation Division in answer to a request for cancellation. Cancellation grounds existwhere:1. Certain trademarks collide;2. There are registration obstacles, such as the liquidation of the company involved; or3. There is a failure to use a trademark appropriately within 5 years of its first registration.IV Registered Design ProtectionThe Registered Design Act protects the external appearance (the aesthetically perceptiblecolour and form) of a product. The protection afforded by the presently applicable RegisteredDesign Act should be clearly distinguished from the Industrial Design Act discussed below.Only new designs are protected by the Registered Design Act. Article 2 provides a negativetest to determine what is a new design. A design is not to be regarded as new, when it looksexactly like, or confusingly similar to, the appearance of an object that existed prior to thedesign’s date of priority, and that was accessible by the public, and, obviously, when theobject’s appearance may be transferred to the object listed on the design’s commodityclassification.All sensually perceivable objects that are absolutely and objectively new to the public are perse not new. Note, however, that the term “public” is not statutorily defined. A broadconstruction of the term is preferred, as to do otherwise would be to expand the realm of theAct to incomprehensible limits. The date of priority is defined as the date an orderlyapplication has been lodged.The principle of novelty, regulated in article 2, is subject to various exceptions. A disclosurethat may injure the claim to novelty is inapplicable when it is not expressed 6 months prior to- 36 -