Heyneman and another v Waterfront Marine CC and others
 2 All SA 382 (C)
Cape of Good Hope Provincial Division
15 June 2004
DH van Zyl J
C Webster and AD Maher
. Editor's Summary . Cases Referred to . Judgment .
 Passing off Respondents clearly identifying product by their own brand and not one similar to that of applicants.
 Passing off Unlawful competition Getup What constitutes When protected.
 Unlawful competition Passing off Reference to competitor's specifications in designing rival product Public domain.
The applicants sought a final interdict (alternatively an interim interdict pending the finalisation of an action to be
instituted for final relief) in respect of alleged passing off by the respondents to the detriment of the applicants, as
well as a declaratory order to the effect that the conduct of the respondents constituted unfair competition with the
second applicant. The second applicant (of which the first applicant was the sole member) had designed and
manufactured a range of boats uniquely suited to South African conditions. The first respondent (of which the
second and third respondents were members) sold boats which it purchased from the second applicant. The first
applicant had conveyed to the respondents all the technical aspects concerning the design and construction of the
boats. The applicants alleged that this information was confidential, having been acquired during years of
experimentation and the gleaning of practical experience, and constituted information within the unique knowledge
and skill of the first applicant, which contributed fundamentally to the reputation and goodwill of the boats in the
The respondents later informed the applicants that they intended marketing boats overseas and that they were
going to build their own boats for this purpose. The first applicant, on inspecting the boats later made available for
sale in South Africa, concluded that the immediate reaction of a member of the public who looked at the boats
would be that they were boats constructed by the second applicant. The applicants argued therefore that there
was hence a real danger that a potential purchaser might be misled to infer that the respondents' boats were in
fact boats manufactured by the applicants, which constituted passing off and unfair competition, justifying the issue
of an interdict to prevent the respondents from continuing with their unlawful and injurious conduct.
The respondents argued that the applicants had never sought the registration of any intellectual property rights
in the design, construction or appearance of their boats other than to apply for registration of a trademark in the
name "Falcon". The mere copying of the boats would hence not in itself constitute unlawful competition. In any
event the respondents denied that they had copied the Falcon.
Page 383 of  2 All SA 382 (C)
Although "at first blush and to the uninformed eye, rigid inflatable boats look similar to one another", the
respondents argued, this did not mean that a discerning potential purchaser would be confused by this similarity.
The third respondent denied that the respondents had abused confidential information concerning the Falcon range
of boats for purposes of developing their own range. The information referred to was readily available from an
examination of the vessels or from advertising material, brochures or literature in magazines on boating to which
the general public had unlimited access. Such information was hence in the public domain and not confidential. The
third respondent emphasised that there was nothing preventing the respondents from producing their own range
of boats while taking full cognisance of the prevailing state of the art. The designer of the respondents' boats
testified that he had been instructed to design boats that were better than the Falcon in several material aspects,
and that a comparison of the two ranges of boats yielded obvious and substantial differences.
It was argued for the applicants that the appearance of the two ranges of boats was so similar that an ordinary
purchaser would of necessity be confused or misled into believing that the respondents' boats were in fact Falcon
boats. The applicants stood to be severely prejudiced should the respondents be permitted to continue with their
wrongful conduct. They were hence entitled, at least, to an interim interdict pending the institution of an action for
damages suffered by them as a result of the applicants' wrongful competition.
The respondents argued that, if reliance were placed on passing off as a form of unlawful competition, the
applicant for an interdict had to prove that the respondents' merchandise was being misrepresented as, or
associated with, that of the applicants. The misrepresentation or association must be such that there is a
reasonable likelihood that members of the public may be confused into believing that the business of the one is, or
is connected with, that of the other. In addition this likelihood of confusion must cause damage to the goodwill or
reputation of the other. In the present matter, it was argued, the only reputation that the applicants had
established was in the name of its boats, namely "Falcon". An ordinary purchaser who saw this name would not be