trade mark registration number 91/02702 in class 41 and trade mark registration number 91/02702/01 in class 36,
for the specification of services for which the marks are presently registered.
Certificates under the hand of the Registrar of Trade Marks reflecting the details of the registrations of the LOTTO
trade mark with which the application
Page 621 of [2007] 1 All SA 618 (T)
is contained were on 23 March 2004. The first certificate is 1991/02702/1 and the second 1991/02702 and annexed
to the papers before court.
The second applicant is Uthingo Management (Pty) Ltd. The second applicant was, in August 1999, granted the
sole licence, in accordance with the Lotteries Act, to conduct the National Lottery. This licence will endure until 31
March 2007. The second applicant acquired the trade mark registration number 1991/02702 in class 36 by
assignment from the then proprietor of the mark with effect from 9 September 1999.
The first applicant acquired the trade mark registration number 1991/02702 by assignment from the second
applicant with effect from 11 February 2000 from which date the second applicant became a permitted user thereof.
The second applicant was recorded as a registered user of the LOTTO trade mark as registered under number
1991/02702 for all the services to which that registration applied on 10 January 2003 and such recording of the
second applicant as a registered user persists.
The respondent is Online Lottery Services (Pty) Ltd. The respondent trades as LottoFun.
At the commencement of the hearing there were two applications to strike out by the first and second applicants
as applicants in the present matter and by the first and second respondents in the second application. The import
of the strikingout were that certain paragraphs in the answering affidavit of Jason Marc Schmulian constituted
hearsay evidence and that as such were inadmissible as evidence and on the ground that it was in any event
irrelevant and similarly on the second application by the first and second respondents on the founding affidavit filed
on behalf of the applicant being Online Lotteries Services (Pty) Ltd were either hearsay and/or irrelevant to the
issues to be determined in these applications. The documents which were sought to be struck out consisted of
approximately 600700 pages.
After listening to both sets of counsel the applications were granted with costs consequent upon the employment
of two counsel and that reasons would be in the main judgment.
Counsel for the applicants in both applications argued that most of the matters which are raised in the answering
affidavit are matters which arose after the replying affidavit and as such, such matters cannot be considered by this
Court. Secondly that the matters are irrelevant meaning that the allegations do not apply to the matter in hand or
which do not contribute one way or another to a decision of such matter.
Although the court has a general discretion concerning striking out, this procedure is governed by rule 6(12) of
the Uniform Rules of Court. And the court should in the circumstances be satisfied that such matter is irrelevant and
or would be prejudicial if not granted.
The strikingout applications are based on the grounds that the matter is hearsay, that it is irrelevant; or that it is
not proper material for reply.
The respondent contends that the Court must have a bird's eye view of the circumstances leading to the
furnishing of this evidence in order to assist the court in having a reception of facts that of what is relevant in the
issue before this Court. In essence the argument is that the LOTTO mark is loosely used by many countries
irrespective of whether the applicants are members or not.
Page 622 of [2007] 1 All SA 618 (T)
I cannot agree with this argument. One has to look at the ordinary meaning of the word in the Oxford Dictionary.
What the Oxford English Dictionary describes as irrelevant matter that is allegations which do not apply to the
matter in hand or which do not contribute one way or another to a decision of such matter. In my view these
matters which have been described as hearsay or inadmissible or irrelevant do not contribute one way or another
to a decision of such a matter and as such it would be even prejudicial in a sense that it was raised in reply and
would afford the applicant's considerable analysis to weigh their option whether to controvert it or not. In those
circumstances I made the order as alluded to above.
I now deal with the interdict application. The second applicant has at all times used the registered trade marks
strictly under the directions and control of the first applicant. The respondent without the authority of the first or
second applicants conducted the business which enabled members of the public to order and purchase tickets for
the LOTTO game, which forms part of the National Lottery, via internet and via the small message service (sms
service) provided by mobile telephone networks, and that in the conduct of its business the respondent is infringing
the registered trade marks: is passing off its business and services as being those of the first applicant or as being
connected in the course of trade with the first applicant: is contravening certain of the provisions of the Lotteries
Act and is competing unlawfully with the first and second applicants.
The first applicant brings this application in order to fulfil its obligations in terms of the Lotteries Act to ensure that
the interests of every participant in the National Lottery are adequately protected.