du Toit for use in the 5,8metre Sovereign inflatable boat.
[41] 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. Suggestions to the contrary
did not reflect reality or the legal position. Nor was there anything sinister in their willingness, expressed in
the letter of 5 November 2002 (paragraph 19 above) to continue marketing Falcon products in Cape Town,
Page 394 of [2005] 2 All SA 382 (C)
where they had created a market. In any event it was strongly denied that Anton du Toit had been instructed
to design vessels identical, or even similar, to the second applicant's 575SR and 640SR models.
[42] The respondents decided to market the Sovereign boats in South Africa only after it had become clear to them
that their relationship with the applicants would be severed and that the second applicant would no longer
continue to supply Falcon vessels for sale and distribution by the first respondent. They justifiably assumed,
from the first applicant's conduct, that the first respondent's sole agency had been terminated. This conduct
included the first applicant's visit to the first respondent's premises during August 2003, ostensibly to inspect
the vessels on display or in the process of construction. As appears from the relevant correspondence, the
respondents objected to the said visit without notice thereof having been given to their attorneys.
[43] The third respondent reiterated his denial that the respondents were passing off their Sovereign boats as the
Falcon boats of the applicants. He suggested that it would be absurd for the first respondent to enhance the
goodwill of the second applicant by selling its own boats as if they emanated from the second applicant. It
was the settled intention of the first respondent to build up its own goodwill and reputation by producing and
selling boats of high quality and by rendering high quality service in relation thereto. If the first respondent
were indeed indulging in passing off or unfair competition, it would not sell its boats at higher prices than
those of the second applicant. This underscored the fact that they emanated from different sources.
[44] In view of these facts and circumstances the third respondent averred that the applicants were not entitled to
interdictory relief, be it interim or final. They had not succeeded in putting up any case of passingoff or unfair
competition and had likewise been unable to demonstrate any damages already suffered or feared to be
imminent. The case that the first applicant and the deponents to supporting affidavits had put up was
contrived, if not untruthful. It is clear that any initial confusion they might have had was dispelled the moment
they saw the name on the boats. For these reasons the third respondent sought that the application be
dismissed with costs.
[45] In his supporting affidavit, Anton du Toit averred that he had been employed in the field of yacht design since
1990, when he joined US Yachts as an apprentice yacht designer. After acquiring further experience for more
than a decade, he commenced practising, from approximately 2001, for his own account as a yacht and small
craft designer and naval (marine) architect. When the second and third respondents approached him during
May 2002 to design a range of three rigid inflatable boats for them, he had already built up substantial
experience in designing similar boats for Prestige and Gemini.
[46] Du Toit was aware of the fact that the second and third respondents were involved in selling Falcon
inflatables. They were, indeed, "the point of reference," as far as their range of sizes was concerned, for his
instruction to design boats for the respondents. Their lengths were to be 5,2, 5,8 and 6,5 metres respectively.
He was specifically instructed to build the boats in such a way that the pontoon rode free of the water when
the boat was
Page 395 of [2005] 2 All SA 382 (C)
planning, and to ensure that there was a centre channel to the boat. The overall design, appearance and
performance of the boat were meant to be better than that of the Falcon.
[47] With a view to achieving this purpose Du Toit measured the Falcon boats on the premises of the first
respondent to obtain a "point of reference". Thereafter, drawing on his brief, his knowledge of the state of
the art in the industry at the time and his skill, intuition and expertise, he produced design drawings of the
boats required by the first respondent. The end product was an advance on the existing state of the art and
an improvement on the Falcon range of boats in that it eliminated the "inadequacies" in their design. In this
regard he stated:
"The design I produced was not a copy of the Falcon boats. It was a new design based on improvements on the
state of the art as it existed at the time. This is a method of design employed throughout the world in relation to
small craft of every kind. It is unheard of (and would be completely irrational) for a designer to endeavour to start
designing a vessel completely from scratch. It would be as irrational to expect a motor car designer to design next
year's model of motor cars without having regard to the state of the art in the motor car manufacturing industry at
the time. New designs in boat building are constituted by incremental advances on the state of the art. In an
industry which has, in one form or another, been around for tens of thousands of years, it is unrealistic to expect
any substantial changes in the design of a vessel which was already available to commerce."
A comparison of the Falcon and Sovereign range of boats, Du Toit concluded, yielded obvious and substantial
differences. In this regard he confirmed the third respondent's averments dealing with such differences.
Submissions on behalf of the parties
Submissions for the applicants
[48] Mr Van Sittert, for the applicants, submitted that the evidence tendered by both sides indicated that the first
respondent's Sovereign range of boats corresponded closely in appearance, form and design with the second