own brand name. Since this pricing works on a basis whereby the applicant does not know what the
respondents have tendered for a "clickthrough" resulting from its advertisement, the applicant is, it asserts,
doubly prejudiced. It has to pay more than it would have to in order to advertise its own brand.
[11] The respondent admits that it bids on the words "clearvu", "clear vu" and "clearvu" in the Google AdWords
System this is the reason for the appearance of its MSecure advertisement in the search result of "ClearVu".
It denies that this conduct amounts to the use of the applicant's "ClearVu" mark as a trademark or that this
will result in customers being confused and deceived into thinking the respondent's MSecure product is
connected with the applicant's "ClearVu" product. It also denies that every instance of a search for a keyword
will lead to the display of the related advertisement. This, it says, will depend on the number of
advertisements related to the keyword and the respective ranking of the keywords. The respondent further
denies that the Google AdWords affect the ranking of natural search results. In respect of the allegation that
"ClearVu" appears in the text of the respondent's advertisement, this is emphatically denied. This so called
"visual use" will be dealt with later in the judgment.
[12] The applicant applied for the registration of "ClearVu" as a trade mark in terms of the Trade Marks Act 194 of
1993 ("the Act") during 2010. The respondents were informed by the applicants' attorneys that once the mark
was registered, its use would constitute another ground of illegality, namely a statutory trade mark
infringement. The Registrar accepted the application for registration but a few days before the expiry of the
statutory three month period for filing opposition to the registration, the respondent notified the Registrar
that it wished to oppose the registration. As a result, the trademark is currently not registered.
[13] The applicant attributes a sinister motive to the respondent. It asserts that this conduct is abusive as the
respondent's objection is illfounded and designed merely to prevent the applicant from securing registered
protection in order to avoid another statutory ground of illegality. Nonetheless, the applicant for the purposes
of this application, relies on the infringement of its common law rights which it states resides in its reputation,
and is a constituent of its goodwill. The applicant is also the owner of the internet domains <"clearvu".co.za>
and <"clearvu".com>.
[14] Before dealing with the applicant's causes of action, its allegation of visual use by the respondent must be
addressed. Visual use consists, not only of the use of a trade mark as a keyword by a competitor, but also
using the trade mark in the text of the competitor's advertisement.
Page 167 of [2015] 2 All SA 162 (GJ)
Visual use
[15] Until 11 April 2014, the applicant's case was based entirely on the use of the keyword "ClearVu" as set out
above. On 11 April 2014, the applicant filed a fourth affidavit seeking to introduce evidence to the effect that
on 19 March 2014 it became aware that the respondent was using "ClearVu" in the text of its Google
advertisements. In support of this, the applicant attached what it claimed was an example of the visual use of
"ClearVu" in the respondent's advertising text. No explanation is proffered as to how this evidence was
obtained. The advertisement referred to is:
[16] The respondent denies that it uses "ClearVu" as text in its advertisements. It states that there is no evidence
that it is responsible for this visual use as anyone can manufacture a search result simply by bidding on a
Google Adword and crafting an advertisement that will appear in the results. Apart from alleging gross
unfairness if the evidence were introduced at this stage, the respondent avers that the introduction of this
evidence amounts to the introduction of an entirely new cause of action, based on facts which were neither
pleaded nor evidenced in the founding affidavit.
[17] Ordinarily only three sets of affidavits are permitted in motion court proceedings the founding affidavit, the
answering affidavit and the replying affidavit. However, a court has a discretion to admit more than three
affidavits subject to considerations of fairness and justice and in the absence of prejudice to other parties.
The applicant is obliged to show circumstances warranting the admission of further affidavits.1 I t i s n o t
sufficient to set out bald allegations.2 Counsel for the respondent correctly states that the applicant has set
out very few facts to support its claims of "visual use". It is not stated what search engine was used or what
search was done to discover the visual use.