A brief detail relating to the respondent are that on 24 February 2000 a company was registered as Equistock
Holdings 169 (Pty) Ltd. In terms of a special resolution registered on 19 September 2000 Equistock Holdings 169
(Pty) Ltd underwent a change of name to LottoFun (Pty) Ltd. At the time the directors of LottoFun (Pty) Ltd were
David Sean Ockner and Andrè Benjamin de Beer. The main object of the company was stated to be "Online Lotto
Services". As at 2000 the directors are now Messrs Bloom, Robinson and Schmulian, and the main object of a
company is now "electronic and commerce and related services".
In September 2001 the first applicant lodged a written complaint in terms of section 45 of the Companies Act 61
of 1973 objecting to the use of the name LottoFun (Pty) Ltd, on the grounds that the first applicant is the registered
proprietor of various trade marks for the name and trade mark LOTTO which exists in certain classes. The
respondent's companies' name suggested that there was an association with the National Lottery and that the
name and the main object of the respondent falls within the ambit of the specification of goods and services which
the applicant trades in and this respondent's name will likely cause deception and confusion in the trade and
market place into believing that there is some connection in the course of trade between the applicant and the
respondent whereas such connection did not exist.
Pursuant to this complaint in terms of section 45 of the Companies Act the respondent changed its name from
what was "LottoFun (Pty) Ltd" to its present "Online Lottery Services (Pty) Ltd".
There were, however, certain exchanges which took place between the parties between the period March 2000
to May 2001 and thereafter. The applicants
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maintain that "no business relationship between the respondent and the second applicant was ever concluded and
that the respondent has not been granted any authority to sell the tickets for the LOTTO game fun via the internet
or at all".
The LOTTO game forms part of the National Lottery. It is operated by the second applicant. Subsequent to the
licence being granted to it, and pursuant to section 14(2)(g) of the Lotteries Act, the second applicant devised the
LOTTO game rules (the rules which are the rules that applied to the LOTTO game). The LOTTO game is played by
persons from all walks of life ranging through the full spectrum of the South African population. The second applicant
sells the LOTTO game ticket countrywide via a network of authorised retailers and retail outlets. The relationship
between the second applicant and the retailer is governed by a written agreement. A detailed probity check is
conducted in respect of all applicants who applied to become retailers. The second applicant authorises as retailers
only those applicants whom it can trust to ensure transparency, integrity and fairness in the entire process.
During March 2004 a written agreement was concluded between Newbucks Operation (Pty) Ltd (Newbucks) and
the second applicant in terms of which the second applicant, as it was entitled to do, appointed Newbucks to
provide mail subscriptions to the ebucks shop for a period enduring until 31 March 2007. In terms of this
agreement Newbucks is entitled to sell tickets for the LOTTO game via its website operating under the name and
style of "play LOTTO with your ebucks". This LOTTO game is played by subscription to stringent conditions as
provided for in rule 10 of its rules. Consequently tickets for the LOTTO game are available for sale over the internet
and from two different entities one of which is authorised and entitled to so sell them and one of which is not. The
applicant contends that the likelihood of deception and confusion between the activities of the respondent and
those of the first applicant on the one hand and its authorised licensee, the second applicant, on the other hand, is
increased as a consequence thereof.
The respondent, however, denies that it sells Lottery tickets and further denies that there is any likelihood of
deception or confusion between Newbucks or the two applicants and the respondent and denies that "this
likelihood of confusion or deception is increased as a result of the arrival of Newbucks or the ongoing activities of
the respondent".
The respondent conducts business of providing "Online Lotto Services" which can be found on its website wherein
it is stated that "LottoFun specialises in the South African National Lottery and Online Lottery tickets" and that
"LottoFun is an independent operator and has no direct affiliation with the South African National Lottery, the
National Lotteries Board and/or Uthingo Management (Pty) Ltd" and further that "LottoFun is owned by Online
Lottery Services (Pty) Ltd, a limited liability company incorporated in the Republic of South Africa".
That any member of the public who wishes to order the LOTTO game tickets via the internet or sms, can register
with the respondent online by completing the registration form. The individual having registered must then deposit
funds into the LottoFun banking account and those funds will be utilised for the purchase of the LOTTO game
tickets. Any such monies may be held by the respondent or anyone or more unidentified third parties, without prior
notice of this being given to the respondents' customers. Having
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registered and deposited the funds, an individual can then order the Lotto game tickets online by submitting his
numbers to the respondent via email so that the tickets can be issued.
On the respondent's terms and conditions as contained in the website the respondent expressly states that its
terms and conditions are not governed by the provisions of the Banks Act 94 of 1990 or the Depositstaking
Institutions Amendment Act 9 of 1993. That monies advanced are accordingly not held pursuant to those acts. It
further states that in terms of the respondent's terms and conditions the respondent has no liability whatsoever for
any breach of conditions including its obligations due to courses beyond its control including server operation