In answer to this response the deponent to the respondent's affidavit says:
"I deny that there was 'no business relationship' between Lottofun and Uthingo. The rest of the evidence in this matter
clearly indicates there to have been one, although I accept that what is a 'relationship' is capable of varying degrees of
interpretation. My point is that there was not no relationship."
Whatever interpretation is given the clear meaning is that there was no business relationship.
The second circumstance, that of the installation of the lottery terminal, is equally of no assistance to the
respondent. The respondent's case is that in order to facilitate the respondent's modus operandi the second
applicant itself installed an ordinary lottery terminal for the exclusive use of the respondent, at an ordinary retail
outlet which already had other lottery terminals.
It is clear from all the evidence, that there was no question of the second applicant approving the installation of
the second terminal at the premises of Wingate Computers for the exclusive use of the respondent, or to facilitate
the respondent's modus operandi. No one at the second applicant was even aware that the respondent intended to
use the second terminal installed at Wingate Computers to operate its business. The second terminal was in fact
installed at Wingate Computers in the ordinary course of business of Wingate Computers and pursuant to a
request made on its behalf that the second terminal be so installed.
Passing off is a species of the broader delict of "unlawful competition". See Hoechst Pharmaceutical (Pty) Ltd v The
Beauty Box (Pty) Ltd (in liquidation) and another 1987 (2) SA 600 (A) and the cases cited there particularly at 613D
614E.
The chief distinguishing characteristic of a "passingoff" is that it consists of a misrepresentation of a particular
kind. See Brian Boswell Circus (Pty) Ltd and another v Boswell Wilkie Circus (Pty) Ltd 1985 (4) SA 466 (A) at 478J. A
passingoff is unlawful because it results, or is calculated to result, in the improper filching of another's trade and an
improper infringement of his goodwill and/or because it may cause injury to that other's trade or reputation. The
representation which is necessary to found a passingoff claim may be expressed or implied. Whether it be an
express representation or an implied representation, the test is still whether, in all the circumstances, the
resemblance between the competing products is such that there is a reasonable likelihood that ordinary members
of the public, or a substantial number thereof, may be confused or deceived into believing that the merchandise of
the alleged wrongdoer is that of the aggrieved party or is connected therewith. See Brian Boswell Circus (Pty) Ltd
and another v Boswell Wilkie Circus (Pty) Ltd (supra) at 478GH.
The rights infringed by "passingoff" are the applicant's rights in an existing goodwill. Goodwill has been defined
as "the attractive force which brings in custom". See Lorimar Productions and others v Sterling Clothing Manufacturers
(Pty) Ltd 1981 (3) SA 1129 (T) 1133H.
In general, the applicant must establish the following two essentials in order to succeed in a "passingoff"
action/application:
Page 630 of [2007] 1 All SA 618 (T)
1. That the plaintiff's name, mark, sign or getup has become distinctive, that is, that in the eyes of the public it
has acquired a significance or meaning as indicating a particular origin of the goods in respect of which that
feature is used; and
2. That the use of the feature concerned was likely, or calculated, to deceive and thus cause confusion or injury,
actual or probable, to the goodwill of the applicant's business, as, for example, by depriving him of the profit
that he might have had by selling the goods which the purchaser intended to buy.
Harms JA in the Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd1 1998 (3) SA 938 (SCA) at 947AB
speaks of the "classical trinity" of "reputation (or goodwill), misrepresentation and damage".
Before the likelihood or otherwise of deception or confusion between the two competing products is considered it
is necessary for the applicant to establish as a prerequisite a reputation in the "getup" on which it relies. As
Harms JA said in the Caterham Car Sales (supra) at 950EH paragraph 21:
"[21] The nature of the reputation that a plaintiff has to establish was well stated by Lord Oliver in a judgment referred to at
the outset of this judgment, namely Reckitt & Colman Products Ltd v Borden Inc and others [1990] RPC 341 (HL)
([1990] 1 All ER 873) and 880gh (All ER):
'First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the
mind of the purchasing public by association with the identifying "getup" (whether it consists simply of a brand
name or a trade description, or the individual features of labelling or packaging) under which his particular
goods or services are offered to the public, such that the getup is recognised by the public as a distinctive
specifically of the plaintiff's goods or services.'"
The enquiry in passingoff actions concerns the likelihood that the similarity of another's getup may mislead the
public. The whole getup of the plaintiff on the one hand and the defendant on the other must be compared. In
order to determine whether there is a likelihood of a "passing off" occurring the court must notionally transport
itself from the courtroom to the particular market place and stand in the shoes or sit in the chairs of those who
might be expected to buy the competitors' products.
In determining whether or not there is a likelihood of there being a "passingoff" by the respondent of its goods
as those of the applicant or as being connected in the course of trade with those of the applicant:
"The opinions of trade and other witnesses as to what would be likely may be helpful, but in the end it is the judge, applying
the right principles, who has to answer the question."