was precluded from deciding the second point because the court below had not made any findings on the issue.
Page 4 of [1998] 4 All SA 1 (A)
Initially the appellant wished to argue the first point with reference to the allegations contained in the founding
affidavit only as was done in the court below. There are a number of cases which recognise the right of a
respondent, in spite of having filed an answering affidavit, to argue at the outset that the founding affidavit does
not make out a prima facie case for the relief claimed. They for two reasons suggest that the procedure is akin to an
exception based on the ground that a summons or similar initiating process does not disclose a cause of action: The
founding affidavit alone falls to be considered, and the averments contained therein must be accepted as true. An
important difference with an exception is, however, that the application contains evidence and not only allegations
of fact, and what might be sufficient in a summons may be insufficient in a founding affidavit (see eg Hart v Pinetown
Drivein Cinema (Pty) Ltd 1972 (1) SA 464 (D), Pearson v Magrep Investments (Pty) Ltd and others 1975 (1) SA 186
(D), and latterly, Hubby's Investments (Pty) Ltd v Lifetime Properties (Pty) Ltd 1998 (1) SA 295 (W) 297AE). The usual
object of the procedure is to enable a respondent to meet an application for referral to evidence or the like and
relieve the court of considering the conflicting allegations of fact (cf. Bader and another v Weston and another
1967 (1) SA 134 (C) 136FG).
It seems to me to be wrong to permit the use of this procedure in a court of first instance where there is no real
conflict of fact on the papers, as is the case here. But having used the procedure unsuccessfully at that level, does
not mean that an appellant is entitled to use it again on appeal. In any event, it seems to me that the analogy with
the exception procedure may be inappropriate and that the comparison should rather be with an application for
absolution from the instance in a trial action. Having lost an application for absolution, a defendant cannot
thereafter lead evidence and on appeal argue that absolution should have been granted at the end of the plaintiff's
case. A court of appeal no doubt will consider all the evidence on record. Likewise, having lost an exception, it can
hardly be reargued after completion of the trial. What is on appeal is the substantive order made, in this case the
removal of the trade mark from the register and not the rulings leading up to the result. This also answers the point
raised by Phillips to which I have referred. Before this Court is the question whether the order below was correctly
made, and that includes, should the first point fail, the question whether AdcockIngram was correct in the respect
referred to.
I then proceed to consider whether Phillips was a person aggrieved by the registration of the appellant's trade
mark. First the facts. It is common cause that Phillips in his own name lodged an application for the registration of
the trade mark Valentino. The application for the removal of the appellant's trade mark was lodged in the name of
Phillips "trading as Valentino for Men" and it was alleged that the applicant (ie Phillips) "is the owner of the trade
mark 'Valentino' and claims to be the proprietor thereof in the Republic" because of the lodging of the said
application for registration of the trade mark and, because he is engaged in the sale of clothing under the trade
mark, that he has used the trade mark in advertising "his products" and that he has the intention of continuing to
use the mark.
The founding affidavit presents a different picture. It was sworn to by Phillips but he purported to file the affidavit
on the behalf of a company, Fran & Antonio (Pty) Ltd, of which he was the managing director. This company which
he defined for purposes of his affidavit as "my business" he said, was incorporated in 1977, began trading in that
year under the name "Valentino" and specialised in men's clothing. The company used the mark in its advertising.
He
Page 5 of [1998] 4 All SA 1 (A)
annexed a number of affidavits by clients who "have always associated the mark 'Valentino' exclusively with my
company and the goods which are sold therefrom". He concluded by stating that, apart from his "business which
trades under the name 'Valentino' and which sells clothing and accessories under the mark 'Valentino' I have never
encountered or heard of any goods sold in the Republic of South Africa which did not emanate from my business". In
his replying affidavit, sworn to some twelve years later, he stated that since the founding affidavit the trade mark
had been used by Valentino (Pty) Ltd and by Valentino Clothing CC, both entities seemingly controlled by Phillips.
Since 16 November 1989 the trading was again carried on through Fran & Anthony (Pty) Ltd, renamed, with the
permission of Valentino (Pty) Ltd, Valentino Corporation (Pty) Ltd. His intention was to list Valentino Corporation
(Pty) Ltd on the Johannesburg Stock Exchange. The turnover figures of these concerns were given.
The concept of a "party aggrieved" in the context of section 36 has been the subject of judgments of this court:
Ritz Hotel Ltd v Charles of the Ritz Ltd and another 1988 (3) SA 290 (A), Mars Incorporated v Candy World (Pty) Ltd
1991 (1) SA 567 (A) and Danco Clothing (Pty) Ltd v NuCare Marketing Sales and Promotions (Pty) Ltd and another
1991 (4) SA 850 (A). In addition, the concept arose in other statutory contexts in Francis George Hill Family Trust v
South African Reserve Bank and others 1 9 9 2 ( 3 ) S A 9 1 ( A ) a n d Jeeva and another v Tuck NO and others
1998 (1) SA 785 (SE). It would therefore amount to a supererogation to attempt a restatement or reformulation of
the principles and approach involved. For present purposes the following may, however, be extracted from the first
three cases. The onus rests upon the applicant for removal to establish, as a reasonable possibility, that he is a
person aggrieved. For this purpose it is assumed that the trade mark is wrongly on the register. A wide and liberal
interpretation is given to the term "person aggrieved". The applicant must have a substantial interest in the mark or
must substantially be damaged by it remaining on the register. The fact that the registered mark constitutes an
obstacle to the registration of a mark applied for by the applicant is prima facie evidence of an interest, but if that
application for registration was in bad faith, vexatious or without any substance, the prima facie inference is
negated. (On the last point see also Consort Trade Mark [1980] RPC 160 166 lines 1931.)
Of particular relevance to this appeal is the reasoning in Ritz at 309C311E. Dealing with class 25 and 26 marks,