Distilleerderij voorheen Simon Rijnbende en Zonen v Rolfes, Nebel & Co
1913 WLD 3
400
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W)
400
Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A)
398
John Craig (Pty) Ltd v Dupa Clothing Industries (Pty) Ltd 1977 (3) SA 144
(T)
400
Lorimar Productions Inc and others v Sterling Clothing Manufacturers (Pty)
Ltd; Lorimar Productions Inc and others v OK Hyperama Ltd and others;
Lorimar Productions Inc and others v Dallas Restaurant 1981 (3) SA 1129
(T)
399
Matthews and others v Young 1922 AD 492
398
Payen Components SA Ltd v Bovic Gaskets CC 1994 (2) SA 464 (W)
397
PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623
(A)
396
Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134
(1997 (1) SA 416) (A)
401
Schultz v Butt 1986 (3) SA 667 (A)
399
Silver Crystal Trading (Pty) Ltd v Namibia Diamond Corporation (Pty) Ltd
1983 (4) SA 884 (D)
398
Taylor & Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 (1) SA 412 (SCA)
397
WeberStephen Products Co v Alrite Engineering (Pty) Ltd 1992 (2) SA 489
(A)
401
Judgment
VAN ZYL J
Introduction
[1] This is an application for a final interdict, alternatively an interim interdict pending the finalisation of an action
to be instituted for final relief, arising from allegations of passingoff by the respondents to the detriment of
the applicants. The application is also directed at the granting of a declaratory order to the effect that the
conduct of the respondents constitutes unfair competition with the second applicant. Mr Van Sittert appeared
for the applicants and Mr SholtoDouglas for the respondents. The court expresses its appreciation to them for
their assistance in this matter.
[2] The gist of the relief sought in the wideranging, and somewhat repetitive if not confusing, notice of motion is
that the respondents be interdicted and restrained from passing off the first respondent's "Sovereign" range
of rigid inflatable boats as being the second applicant's "Falcon" range of boats. In addition the court is
requested to declare that the conduct of the respondents constitutes unfair competition in respect of the
second applicant.
[3] In terms of the interdictory relief sought, the applicants require that the respondents be restrained from
manufacturing, marketing, or in any other way making available to the public in South Africa, boats which
substantially
Page 386 of [2005] 2 All SA 382 (C)
correspond, in form, style or appearance, with the Falcon boats manufactured by the second applicant. They
likewise seek that the respondents be restrained from affixing, on boats to be distributed by the respondents
in South Africa, of any logos, decorative striping or other distinguishing marks that might possibly lead to
deception or confusion with those appearing on Falcon boats. They seek further that the respondents be
restrained from making available to the South African public any of the Sovereign boats presently in their
possession, or any boats other than Falcon boats, which correspond in appearance with that depicted in
annexure "I 6" of the founding affidavit. In addition the respondents are called upon to refrain from making
any untrue statements about the quality, performance or any other aspect of the Falcon range of boats. The
applicants similarly seek a restraint on the respondents' making use, in promoting their own business, of the
distinctiveness, market value or goodwill of the Falcon range of boats, with their particular characteristics,
logos, decorative features and general appearance, unless it be directed at the sale and marketing of the
Falcon boats manufactured by the second applicant.
[4] The applicants additionally seek an order requiring the respondents either to make the offending boats
available for destruction by the sheriff or his deputy, or to remove them from public view within twentyfour
hours after the granting of the present order. For this purpose they require that the said officials be
empowered to search the first respondent's premises in Paarden Island for any boats, hulls or other parts of
boats that correspond with the appearance of Falcon boats. Should they discover such items, it is sought that