copyright to any such publication which is owned by Jacobsen's Publishers;
(3)
the fixed assets consisted of the furniture, fixtures, fittings and equipment of the business listed in
Appendix 3 of the agreement;
(4)
the purchase consideration payable by the applicant to Jacobsen's Publishers for the business was R4.4
million, apportioned as follows an amount equal to the net book value of the fixed assets as reflected
in the books of Jacobsen's Publishers as at the effective date for the fixed assets and the balance for
the intellectual property;
(5)
Jacobsen's Publishers undertook to deliver to the applicant on the effective date duly signed company
forms as required in terms of the Companies Act 61 of 1973, reflecting the special resolution/s passed
by the shareholders of Jacobsen's Computer Freight Systems (Pty) Ltd changing the name of JCFS to
such other name, not including the word "Jacobsens" as they deem fit, so as to enable the purchaser to
exercise its entitlement in relation to the name "Jacobsen's Publishers" forming part of the business;
(6)
Jacobsen's Publishers and Neil Jacobsen agreed that all copyright and other similar rights and interest in
and to the publications would vest in and be the property of the applicant as from the effective date
and to that end Jacobsen's Publishers and Neil Jacobsen ceded, assigned and transferred to the
applicant all their right, title and interest in and to the publications with effect from the effective date;
(7)
ownership of the business and assets forming part thereof were passed to the applicant on the
effective date;
(8)
Jacobsen's Publishers and Neil Jacobsen expressly warranted to the applicant
(a)
that Jacobsen's Publishers had good and valid title to the business and all its assets and was
entitled to sell same to the purchaser;
(b)
that neither Jacobsen's Publishers nor Neil Jacobsen had granted any business or any other
(right) in respect of the assets of the business to any third party; and
(c)
that there were 3 590 existing subscribers to the publications collectively and that there were 3
000 subscribers to Jacobsen's Harmonised Customs and Excise Tariff Book and 590 subscribers for
Customs and Excise Rules and Regulations and Prohibited Goods Index.
The first respondent does not dispute the terms of the agreement. It simply argues that the applicant did not
acquire any rights in terms of the trade mark JACOBSEN'S pursuant to the terms of this agreement. This
argument is without merit and requires no further consideration.
[17] In about 1942, Beant Jacobsen, Neil Jacobsen's grandfather, commenced publishing an index detailing "Price
Control" and in 1955 Kenneth Jacobsen, Neil Jacobsen's father, commenced publishing a customs tariff book
called "Jacobsen's Customs Tariff Index".
Page 597 of [2005] 2 All SA 588 (T)
[18] In 1966 Kenneth Jacobsen registered Jacobsen's Publishers and commenced publishing the following works
Jacobsen's Harmonised Customs and Excise Tariff Book;
Jacobsen's Customs & Excise Rules and Prohibited Goods Index;
Jacobsen's Guide to Classification.
At all times Jacobsen's Publishers distributed these works under the mark JACOBSEN'S.
[19] These works became standard publications in the field of customs and excise particularly for people engaged
in importing and exporting goods. They were published as hard copy looseleaf publications and widely
distributed to government departments, freight forwarders, importers and exporters. The works were
regularly updated and in the case of Jacobsen's Harmonised Customs & Excise Tariff Book updated on a
weekly basis.
[20] Neil Jacobsen entered the employment of Jacobsen's Publishers in 1970 and by 1989 was the managing
director of the company.
[21] In about 1989 King approached Neil Jacobsen with a view to publishing a computer program incorporating an
electronic version of Jacobsen's Harmonised Customs & Excise Tariff Book. King and Neil Jacobsen orally
agreed that they would register a new company and that each would be a director and hold 50% of the
shares. The main object of the company would be to provide an efficient and easy searchable computer
program for the use of clearing agents, importers and exporters to calculate tariffs imposed by Customs and
Excise and documentation thereto. They also agreed that the new company would be called Jacobsen's
Computer Freight Systems (Pty) Ltd (ie JCFS) and Jacobsen's Publishers and Neil Jacobsen permitted JCFS to
use the trade mark JACOBSEN'S in relation to the company's computer program.
[22] Neil Jacobsen and Jacobsen's Publishers provided JCFS with R51 000 as working capital. However the
company's business was not successful. In about the midnineteen nineties Neil Jacobsen and Jacobsen's
Publishers were no longer prepared to provide working capital for JCFS. At that stage Neil Jacobsen
relinquished his position as director. However he retained his shareholding.
[23] On 22 March 1994 King registered Cargo Card Holdings CC (ie the first respondent) and on 24 March 1994
King registered Cargo Card (Pty) Ltd. The main business of this company was financial intermediation,
insurance, real estate and business services. On 1 May 1995 Neil Jacobsen was appointed a director of the
company but he later resigned the position.
[24] In September 1998 the applicant approached Neil Jacobsen with a view to acquiring the business of