[70] More recently, in Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd and another 1991 (2) SA 455
(W) at 474EJ, Van Dijkhorst J distinguished the facts in Schultz v Butt (paragraph 63 above) from those in the
case before him and stated:
"In the instant case the copying was as effective as in Schultz v Butt, but the method differed. There was no mould
involved. A Fendi was stripped down. This involved the removal of upholstery from the steel frame. The frame was
not exactly duplicated as the measurements differ slightly.
I have a problem with the wrongfulness of this action per se. Not all imitation is unlawful. On the contrary,
imitation may be said to be the essence of life. (Cf Lorimar Productions (supra at 1140, 1153).) The Legislature
has granted protection in the fields of patents, designs, copyright, trade marks and plant breeder's rights. A
contrario, beyond that statutory protection the field is open to imitators. The applicant took no steps to register its
design. It cannot complain if it is copied. If one is entitled to copy that which is in the public domain, which is the
law, what difference does it make what your method is? Whether you measure with the eye or with a tape
measure. Whether you record your findings in your retentive memory or in a notebook or through the lens of your
camera. Whether you look only at the exterior or also look at the interior, removing upholstery to do so. I cannot
see that the fact that the Fendi was dissembled, per se, creates the unlawfulness.
Nor am I impressed by the applicant's emphasis on the trial and error of its creation of the prototype and its
detailed information of the process thereafter. An inspection revealed that the frame is quite simple and the
upholstery, though of fine craftmanship, is not extraordinary. To put it simply, the first respondent copied a couch
which the applicant had copied from a photograph of an American design. There is no suggestion that the applicant
acted unlawfully. In the circumstances one balks at a finding (on these facts alone) that the first respondent acted
contra bonos mores."
[71] In the case of WeberStephen Products Co v Alrite Engineering (Pty) Ltd 1992 (2) SA 489 (A) the court held that
the applicant, as original user of the "Weber" grill, had acquired a reputation in its particular shape. The
respondent, as competitor, was hence required to change the shape of his identical ("Mirage") product in
order to distinguish it from that of the applicant.
[72] In the case of Schultz v Butt (paragraph 63 above), on which the applicants set great store, the issue to be
decided was whether the appellant was competing unfairly with the respondent by making a mould of a hull
of a skiboat designed by the respondent. The respondent's design had evolved, at great expense, over a
considerable period of time. The appellant intended to make use of the mould to manufacture and sell boats
in competition with the respondent. The court held that the appellant's conduct was unfair, unjust and in
conflict with public policy. Not only had he trespassed on the respondent's field, but had "added impudence to
dishonesty by obtaining a design registration in his own name" for the hull that he had misappropriated (at
683HI).
[73] In the Taylor & Horne case (paragraph 58 above at 421EF), Van Heerden JA approved the decision in Schultz v
Butt on the basis that, "[b]ecause this amounted to the filching of the fruits of another's skill, labour, etc, it
was held to be unlawful competition". See also Premier Hangers CC v Polyoak (Pty) Ltd1 1997 (1) SA 416 (SCA)
at 424HI.
Page 402 of [2005] 2 All SA 382 (C)
Application of the relevant law to the facts in the present case
[74] It is clear that the applicants have, as in the case of Schultz v Butt (supra) expended much time, money,
labour, energy and effort into designing and developing their Falcon range of rigid inflatable boats, including
the 575SR and 640SR models. It is likewise clear that substantial technical skill and expertise were required to
create the logo, distinguishing features and general aesthetic appearance of such models. There is no doubt
that the boats have developed a reputation as being of outstanding quality and a leader in their class. The
respondents would not have been interested in a sole right to sell and distribute them if this had not been
the case.
[75] On the other hand, there is no indication that the applicants have acquired any reputation relating to any
aspect of the design, shape, form or getup of the boats in question. This is not a case, as in the Webber
Stephen matter (paragraph 71 above) where the characteristic shape or form of the product is unique. Only
the name "Falcon" is currently in the process of registration as a trademark. Understandably there has been
no attempt to seek protection by registration of the design, shape, form or getup of any of the boats. The
reason is obvious. Rigid inflatable boats are, for the most part, similar in design, shape, form and getup, the
differences relating to cosmetic rather than functional aspects thereof. From the day the second applicant
produced and sold its first Falcon, it became part of the public domain and would enjoy protection only if a
competitor should pass off its boat as a Falcon product.
[76] There is no doubt that the Falcon and Sovereign boats are similar in many respects. They are not, however,
identical or "almost identical", as suggested by the applicants. The allegations to this effect by Rivers and
Louw (paragraph 17 above) are patently exaggerated. It would appear that the applicants have been
attempting to fit their case into the mould of Schultz v Butt (supra) with special reference to the hull found on
the premises of the first respondent. The suggestion that it was "identical" to that of the Falcon 575SR and
640SR was a contradiction in terms, inasmuch as their own measurements indicated a difference in length
(paragraph 18 above). No case was ever made out that the respondents were selling Falcon boats to the
public under the name "Sovereign".
[77] There was, in my view, nothing sinister in the letter of 5 November 2002 (paragraph 19 above) in which the
respondents indicate that they have commissioned their own marine architect (Anton du Toit) to design the
Sovereign range of boats. They made it clear that they had built their plugs for the moulds "from scratch",
once again distinguishing the facts in this case from those in Schultz v Butt. In any event the affidavit of Anton
du Toit made it quite clear that, although he took cognisance of the Falcon and of the prevailing state of the