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regard it became the second applicant's sole agent in Cape Town and in 2000 was voted its best dealer.
[31] According to the third respondent the design and construction of rigid inflatable boats is largely dictated by
their function. Functionality, together with the availability of materials and manufacturing methods, also
frequently underlies the colour, style and appearance of such boats. Thus the hull of the boats is invariably
manufactured from glass fibre and wood laminate. The protective stripes ("rubbing strakes") along the sides
of the boats are available only in grey or white, although the colour of the trim may vary according to taste.
The name of the manufacturer usually appears at the rear of the boat attached to the pontoon. The logo
almost invariably occurs in the form of a flat oval or elipse because of the shape of the pontoon.
[32] Although "at first blush and to the uninformed eye, rigid inflatable boats look similar to one another", this
does not mean, the third respondent averred, that a discerning potential purchaser would be confused by this
similarity. A closer inspection of the interior of the Sovereign as opposed to that of the Falcon would reveal
significant differences in design and configuration. Extremely distinctive is the name of the boat itself.
Although both appear within an elipse, the form and style of lettering differ totally.
[33] The relationship between the parties began to sour during 2000 when the second applicant delivered orders
late or delivered boats of an inferior quality to the first respondent. With a view to creating a stable and
secure market the first respondent began exporting Falcon boats. Its success in doing so prompted the third
respondent to request the first applicant, during mid2002, for a sole distribution agreement for Falcon boats
to be sold in the United Kingdom, Ireland and the United States of America. In the alternative he requested
permission to manufacture Falcon boats under licence. These requests were refused, causing the
respondents increasing concern as to the future sustainability of the first respondent's business.
[34] This unsatisfactory situation caused the respondents to consider manufacturing their own range of rigid
inflatable boats. The third respondent accordingly approached Anton du Toit, a marine architect, to design a
range of three inflatable boats measuring 5,2, 5,8 and 6,5 metres respectively. One Kevin Tomlin, a yacht
builder who had served as production manager for Prestige Inflatables, was approached to manufacture the
new range of boats. A marine technologist, Micky Dalsberger, was appointed to prepare patents for the deck
and hull moulds required. Unlike the second applicant, which produced a plug to make a mould, the first
respondent adopted a completely different process, using sophisticated computer design and manufacturing
methodologies that ensured complete accuracy in every phase of manufacture, from initial design to finished
product. The whole process took a relatively short time. Once the mould was produced, the glassreinforced
plastic hull construction took some three days per boat. Thereafter the pontoon was applied to the hull in
three sections over a period of some two days per boat.
[35] The third respondent explained further that the Sovereign logo, which differed markedly from that of the
Falcon, had been designed by Nicola Dean, an art student. In this regard he attached samples of her
preliminary
Page 393 of [2005] 2 All SA 382 (C)
sketches of a possible logo as compared with the efforts of the second respondent to do the same.
[36] Just as the Sovereign and Falcon logos were totally different, just so a comparison of the Sovereign 5,8metre
boat with the Falcon 5,75metre boat indicated striking differences. This was exemplified by their widely
divergent measurements and by the obviously different design of, for example, the forward section of the
deck, the anchor locker section, the centre channel, the back section of the deck, the transom or splashwell
and the hull. As a result Sovereign boats would not fit onto trailers designed for Falcon boats and vice versa.
On the other hand the similarities that were present in the two boats were, according to the third
respondent, within the public domain and were not protected by any design or other intellectual property
registration.
[37] The third respondent then dealt succinctly with the allegations appearing from the first applicant's founding
affidavit and from the supporting affidavits attached thereto, but only in so far as such allegations were not
regarded as irrelevant or repetitive. At the outset he described the method adopted by the first applicant to
design and develop the Falcon range of boats as "unscientific, uneconomical and unduly timeconsuming".
Elsewhere he referred to it as "remarkably obtuse" and "unconvincingly implausible". Much of the ensuing
criticism was of a complex technical character, however, and need not detain us except to the extent that it
might contribute to an understanding of the issues between the parties.
[38] The third respondent denied that the respondents had abused confidential information concerning the Falcon
range of boats for purposes of developing their own Sovereign 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.
[39] The mere fact that the applicants furnished technical data of this nature to the public indicated that they were
aware of the fact that potential purchasers of luxury leisure items take cognisance of such data in considering
a purchase. They do not simply base it on colours, appearance or deck design.
[40] The third respondent objected strongly to a series of hearsay statements appearing in the first applicant's
founding affidavit. The suggestion that an unnamed employee of the first respondent had made derogatory
remarks regarding the first respondent's activities was rejected out of hand as inadmissible and vexatious.
Regarding the unfinished hull that the first applicant had seen on the first respondent's premises (paragraph
18 above), the third respondent averred that it had been manufactured from the design produced by Anton