A further report on the progress with the PARLIAMENT brand is dated 8 February 2008. The rollout of
PARLIAMENT was described as being "critically behind schedule". It was said to be twentythree weeks past
the planned project end date and only at Stage 5 released. The aim, according to the report was that there
should be growth. If that was not the real intention the entire discussion at this meeting was a farce.
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[36] At a demand review meeting on 30 May 2008 there was a discussion concerning the Voyager brand. The
minutes reflect that the:
"Decision has been taken to tactically place Parliament in stores to compete directly with Voyager brand."
Ms Heglund was present at that meeting. A presentation in June 2008 was in similar terms. The last document
before the cutoff date is an email that Ms Heglund sent to various people on 2 June 2008. In it she described
this as having been a "Tactical Pricing Initiative for Parliament". Why would she use that expression if that
were not in fact the case? And, if it was a tactical pricing initiative, it could only have been in relation to the
low price area of the market. Once again reference was made to extending the test market.
[37] If this was all an elaborate charade to disguise the fact that the sole purpose of launching PARLIAMENT
cigarettes was to protect the trade marks, it must be asked who was orchestrating the charade. It is
impossible to see how this could have been done without Ms Heglund's knowledge and participation. A
charade would have been a particularly subtle one a cunning plan, involving an outward openness in the
frank acknowledgement of the need to protect the trade marks, while presenting a plausible scenario in which
these could be used in the ordinary way to identify a brand that BATSA was inserting into the market. If it
were a charade one would have expected that there would be no mention of the need to protect the trade
marks. Why mention something that could be held against BATSA? There was no attack on the authenticity of
these documents and no suggestion that they did not accurately represent the views of those responsible for
their preparation and presentation or who were at the relevant meetings. Yet the truth, if this was indeed a
charade, had to be that there was no real intention to launch a PARLIAMENT brand, or to market it, and no
intention to use it to address the problems BATSA perceived in the lowprice sector of the market.
[38] Central to all of this would have been Ms Heglund. She would have had to have known what should be
included in presentations and what excluded. She would have had to make reports, ostensibly genuine, about
the launch and progress of the product, whilst being aware that a successful launch was the last thing that
was wanted. Even more to the point, she would have had to be willing to give untruthful evidence and defend
the reality of what she knew to be a charade if an application for expungement was made. It is hardly
surprising that Philip Morris made no endeavour to delineate such an actual charade or to indicate how it
could have been pursued and maintained over the five years that the brand was on sale.
[39] Once it was accepted, as Louw J did, that Ms Heglund's evidence at the trial accurately reflected the
motivation for launching the PARLIAMENT brand, the fact that there was a conscious desire to protect the
marks throughout cannot detract from the fact that they were being used on a product that was to be placed
in the market for a very specific purpose, targeted at a very specific sector of the market and in a way that
would not be detrimental to their existing brands, especially Peter Stuyvesant.
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Was this use as a trade mark?
[40] The case was fought out between the parties on the basis that BATSA's real intention in launching the
PARLIAMENT brand was to protect the marks and that there was no genuine commercial purpose in doing so.
No doubt that was to avoid the principle enunciated in Electrolux13 and accepted in several decisions of our
courts, that bona fide use of a trade mark does not cease to be such because the user has an additional
motive of protecting the mark or protecting its other business. The attempt to obtain expungement on this
basis was doomed to fail in the light of the High Court's acceptance of the evidence of Ms Heglund as to the
commercial purpose of the launch of PARLIAMENT. After that it is not clear what room remained for a finding
that this use did not constitute bona fide use of the marks. There had been no attack directed at the
proposition that strategic use on the basis of her evidence would not qualify as bona fide use. Mr Joubert was
crossexamined on legal issues around the preservation of the marks, but it was not suggested to him that
this kind of use would not qualify as bona fide use. There was no indication in the record of this line of attack.
[41] The expungement action was not fought on the basis of pleadings. The exchange of witness statements did
not identify as an issue what became the major focus of the argument on appeal, namely, that use of the
nature to which Ms Heglund testified would not constitute use as a trade mark for the purposes for which
trade marks are afforded statutory protection. Even the heads of argument only mentioned this in a
somewhat throwaway fashion in the penultimate paragraph. The submission was that:
"[E]ven if the Appellant's evidence is to be accepted insofar as a disruptive strike to interfere with the legitimate
business of its competitors is concerned, such disruptive strikes cannot be described as being 'statutorily authentic'
even if it is accepted these were aimed at protecting the PETER STUYVESANT business. There was no desire or
objective to build up any commercial long term sales strategy in PARLIAMENT cigarettes and the objectives were
anathema to the functions of a trade mark as defined in the Act."14
[42] It came as something of a surprise therefore that, in developing his argument in this Court, Philip Morris' main
line of approach was to urge upon us that the use of the PARLIAMENT mark by BATSA, in the manner
described by Ms Heglund, was not trade mark usage. The concern in this regard is that, while the onus rested
on BATSA to prove that its use of the mark was bona fide use, as that expression is to be understood in trade
mark law, that does not mean that such proceedings do not have to be conducted in a fair way so that