interruption, telecommunications interruptions, interruptions of power and the like.
However, what is significant is that in terms of its clauses the respondents' terms to customers are that
"LottoFun.com makes no warranty that:
1.
The service will meet your requirements;
2.
The service will be interrupted, timely, secure;
3.
The results that may be obtained from the use of the service will be accurate or reliable;
4.
The quality of any products, services, information or other material purchased or obtained by you through the service
will meet your expectation; and
5.
Any errors in the software or website will be corrected."
Whilst the respondent makes the statement in that part of its website entitled "about LottoFun" that it purchases
and holds tickets as an "agent", and whilst the respondent states in its terms and conditions that it does not sell
Lottery tickets but acts merely as an agent, a consideration of all the facts would appear to establish that, as the
applicants contend, that it sells tickets to members of the public. Many of its terms and conditions are simply a
stratagem in an attempt to avoid infringing various sections of the Lotteries Act. The respondents' intention and the
impression it wishes to convey to the public are clearly set out on his website.
The statement "Online Lottery Services is an independent company and is not associated with the South African
National Lottery in any way whatsoever" appears at the end of each document and it is given no prominence in the
sense that it is in any way highlighted for the particular attention of any reader. The applicants contend that it is
unlikely to be seen by any internet user visiting the site for purposes of purchasing tickets for the LOTTO game
online.
In this regard the applicants contend that the use by the respondent of LottoFun, either as one word or as two
words, the one above the other, whether as part of the domain name or as part of that which is displayed when
the domain is accessed:
1. Is use in the course of trade;
2. In relation to goods or services in respect of which the Lotto trade marks are registered or similar services;
3. Of an identical mark, or of a mark so nearly resembling the registered trade marks as to be likely to deceive or
cause confusion.
For the above reasons the applicants contend that the use by the respondent of LottoFun is unauthorised and in
the circumstances the use by the respondent of
Page 625 of [2007] 1 All SA 618 (T)
LottoFun is an infringement of the registered trade marks in terms of section 34(1)(a) of the Trade Marks Act 194 of
1993.
The relief sought by the applicants as found in the notice of motion can be dealt with under two headings; on the
one hand the relief is relating to trade mark infringement and passingoff and thirdly that the relief sought is based
on the provisions of the Lotteries Act. In that regard the applicant seeks an order that the respondent should be
interdicted from infringing and passing off its business by using the mark LottoFun.
(a)
Infringing the Lotto trade mark and passing off its business and services as being those or as being
connected with the first applicant.
(b)
The applicants also seek an order directing the respondent to erase the LottoFun mark from all material in its
business.
Arising from the provisions of the Lotteries Act, the applicant seeks interdict restraining the respondent from
contravening each of sections 57(2)(c), 57(2)(f )(i), 57(2)(f )(iii) and 57(2)(g) of the Lotteries Act by, inter alia, selling
tickets for the national Lottery at a price higher than that printed on the tickets, competing unlawfully with the
second applicant by acting in contravention of the Lottery Act and conducting its business and rendering its services
in terms of its own terms and conditions which are contra bonos mores.
The respondent raises the defences that firstly stayoff proceedings in that the word "Lotto" is unregistrable as a
trade mark in terms of the Trade Mark Act. That the respondent had brought a separate application for
expungement.
The second defence that the applicants were not candid to the court that the respondent had lodged formal
objections to certain trade mark applications which are pending at the offices of the trade marks and that the word
"Lotto" is synonymous with the word "Lottery" and is therefore generic and descriptive and therefore does not
qualify as a trade mark. The third defence is that the applicant has no right to exclusivity in the word "Lotto" and
that this is a word used worldwide. Thirdly the defence of acquiescence that the respondents' use of the mark
LottoFun neither infringes nor passesoff. That the respondent has used LottoFun in its business through the four
years as he traded and relied basically on the correspondence which was conducted as I indicted above between
the periods March 2000 and March 2001 and as such the applicants were aware that the respondent is in business
and there was no objection thereto.
A further defence was that of lack of candour and possible unclean hands namely that for the past four years the
respondent has been trading and it has been known by the applicants who have supported it and has benefited to
the tune of several millions of rands. The second applicant has facilitated the respondent's motu operandi in that it