Cowbell AG v ICS Holdings Ltd [2001] 4 All SA 242 (2001 (3) SA 941) (SCA)
537
Flamagas SA v Dayan Gifts CC and another unreported, WLD, dated 1
November 1996
540
John Craig (Pty) Ltd v Dupa Clothing Industries (Pty) Ltd 1977 (3) SA 144
(T)
537
Juvena Produits de Beauté SA v BLP Import & Export 1980 (3) SA 210 (T)
537
Kellogg Co and another v Bokomo Cooperative Ltd 1997 (2) SA 725 (C)
535
Miriam Glick Trading (Pty) Ltd v Clicks Stores (Transvaal) (Pty) Ltd and
others 1979 (2) SA 290 (T)
538
My Kinda Bones Ltd v Dr Pepper's Stove Co Ltd 1984 FSR 289
535
Pasquali Cigarette Co Ltd v Diaconicolas and Capsopolus 1905 TS 472
536
Pepsico Inc and others v United Tobacco Co Ltd 1988 (2) SA 334 (W)
535
PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623
(A)
537
Polakow Brothers (Pty) Ltd v Gershlowitz 1976 (1) SA 863 (E)
534
Policansky Bros Ltd v L&H Policansky 1935 AD 89
536
SA Breweries Ltd v Distillers Corporation (SA) Ltd 1973 (4) SA 145 (W)
537
Stellenbosch Wine Trust Ltd and others v Oude Meester Group Ltd and
others 1977 (2) SA 221 (C)
541
Tie Rack plc v Tie Rack Stores (Pty) Ltd 1989 (4) SA 427 (T)
534
United Kingdom
Reckitt & Colman Products Ltd v Borden Inc and others [1990] RPC 341
(HL) ([1990] 1 All ER 873)
533
Judgment
DANIELS J
The first applicant is the owner of all the rights in and to the getup of its vodka/lemon "spirit cooler" beverages
sold under the trade marks Smirnoff Ice and Smirnoff Spin. The second applicant is licensed by the first applicant to
use
Page 531 of [2006] 3 All SA 529 (T)
the getup and trade marks in South Africa in relation to these vodka/lemon "spirit coolers". The locus standi of the
applicants is not disputed.
The respondent is DGB (Pty) Ltd which manufactures, bottles, markets and sells in South Africa a similar
vodka/lemon "spirit cooler" beverage. It sells this competing product under the name of Nordic Ice.
The applicants claim the following relief:
"1
Interdicting and restraining the respondent from passing off its vodka cooler and any other alcoholic spirit
product as that of the applicants or as being connected in the course of trade with the applicants by using in
regard thereto
1.1
any getup which is identical to the getup used in relation the applicants' Smirnoff Ice and Smirnoff Spin
products as illustrated in annexure 'UDV1' to the affidavit of Solace Kgomoco Tseliso ('the founding
affidavit');
1.2
any getup which is likely to deceive or cause confusion due to its similarity with the appearance of the
getup used in relation to the applicant's Smirnoff Ice and Smirnoff Spin products as illustrated in annexure
'UDV1' to the founding affidavit.
2
Interdicting and restraining the respondent from competing unlawfully with the applicants at common law by
manufacturing, marketing and exhibiting for commercial purposes, offering for sale and or selling the Nordic Ice
vodka spirit cooler product and any other alcoholic spirit product incorporating a getup as illustrated and
identified as annexure 'UDV32' to the founding affidavit.
3
Costs of the application."
I understood from Mr Bester, who appears for the applicants, that they are not pursuing the relief originally sought
in paragraphs 3 and 4 of the notice of motion. The relief there claimed was not referred to in his heads of argument,
and he did not address me in regard thereto.