under crossexamination, the fact that she sought it out and produced it, even at a late stage when she must
have been preparing to give her evidence, reflected favourably on her honesty and credibility. Had she been
dishonest it would have been the simplest thing in the world to suppress it and carry on as before. After all,
that was what her erstwhile employer was expecting. Instead she asked for it and, having discovered it by
accident, produced it and it was made available to Philip Morris. It occasioned a measure of discomfiture
because BATSA's legal team sought to run the case on the basis that the tactical execution referred to in the
document and explained by her in evidence was consistent with her original affidavit. This was exploited in
crossexamination because the inconsistency was apparent. It may have been preferable for BATSA to accept
that what she had said originally was incorrect, and live with the consequences. But that is possibly the
wisdom of hindsight emanating from one who no longer has responsibility for the conduct of trials on behalf of
clients.
[24] Ms Heglund not only explained what was meant and understood by the strategy and marketing team by
"tactical execution", but testified that this was the nature and purpose of the launch of PARLIAMENT. She said
it meant that instead of a national launch of a single product in the low price section of the market they would
consider, evaluate and investigate tactical options. No single brand in the low price sector had a very large
market share and therefore it was possible to take a brand tactically into areas where there was specific low
price activity or "hot spots" in the market, and attempt to reduce the opposition in those specific areas. The
idea was to disrupt "opposition traction" in the environment and to distract the consumer by making a further
choice available.
Philip Morris' case
[25] Philip Morris' case, as articulated in its heads of argument, was that the only inference that could be drawn
from the evidence was that BATSA's use of the PARLIAMENT mark was solely for the purpose of avoiding its
removal from the register. In advancing this argument, stress was laid on the fact that Mr Joubert was aware
of the risk that the registration of the mark might otherwise be lost, and had suggested using the
PARLIAMENT mark. Furthermore, documents discovered by Westminster emphasised the need to launch the
product in time to prevent the mark from being deregistered. A launch presentation dated 14 December 2007
said that BATSA needed to demonstrate use of the mark before April 2008. The same presentation recorded
that PMI was the international trade mark owner. Protection of the trade mark was manifestly one of the
objectives of the launch. Philip Morris argued that BATSA had failed to demonstrate any other legitimate trade
objective and, to this end, placed evidence before the High Court to show that the steps taken to place
PARLIAMENT cigarettes in the market were not those ordinarily attendant upon the launch of a new cigarette.
This
Page 399 of [2017] 2 All SA 389 (SCA)
evidence was largely uncontested, save in regard to its relevance. Lastly, Philip Morris launched a sustained
attack on the credibility of the principal witnesses for BATSA, namely, Mr Joubert and Ms Heglund, and their
evidence concerning the purpose of the launch of the PARLIAMENT brand.
[26] Philip Morris attacked Ms Heglund's evidence on the basis that the manner in which the launch was conducted
from January to July 2008 and thereafter, would not have served the purposes she outlined. The argument
proceeded as follows. The initial launch in Upington, in 20 outlets selected by Mr Nel, was unscientific and an
inadequate sample for information purposes. It was not undertaken with any degree of vigour or enthusiasm,
nor had it an adequate budget. Moreover, Upington was an isolated place to launch a brand with this tactical
purpose. If indeed that were truly the purpose, the launch should have been undertaken in a major urban
area, particularly if useful information was to be derived from it. There was no market research of the smoking
preferences of the target group and no follow up when reports were received that the target group did not
like the taste of PARLIAMENT cigarettes. Once the launch took place there was no proper followup with
retailers or consumers. The information that was obtained was so limited and superficial in nature that it was
effectively valueless. Fairly rapidly the launch fizzled out in that area. The launch was then pursued in the
Bloemfontein and Welkom areas, in the same desultory fashion, which suggested a concern to dispose of the
initial stock of one million cigarettes before they became stale, rather than a desire to establish the
PARLIAMENT brand.
[27] I accept that, in contrast to the introduction of other brands by BATSA, the launch of PARLIAMENT was
characterised by hesitation, a lack of planning and followup and a failure to follow the usual course for such a
launch. But the use of a mark does not cease to be bona fide because it is characterised by inefficiency,
incompetence or failure. The only question is whether it was genuinely used for trade mark purposes. If a
large and successful commercial organisation, such as BATSA, mishandles a product launch or conducts it in a
fashion that to industry experts seems sloppy, amateurish and unlikely to succeed, that may be an important
factor in considering whether it was a bona fide attempt to launch a product using the mark in issue. Such
conduct may well aim at disguising an intention to put the mark on a product in the market solely to protect it
against a rival and not to trade using that mark. It cannot, however, be decisive where the evidence indicates
that there was in fact a genuine intention to launch the product using the mark for commercial purposes. So it
becomes necessary to weigh Philip Morris' criticisms against the evidence pointing to a genuine intention to
use the PARLIAMENT mark in the manner outlined by Ms Heglund in her evidence.
Credibility
[28] In the High Court, Philip Morris submitted that Ms Heglund was an unsatisfactory witness. Louw J did not
accept this criticism. He agreed that what was said in her affidavit about a nationwide launch of a new brand
in the low price sector of the market was inconsistent with her oral evidence about targeted entry into low
price hot spots of limited duration