not affect costs of appeal. The appeal stands to be dismissed subject to the indicated changes to the order.
[42] The following order issues:
(a)
Save as indicated in paragraph (b), the appeal is dismissed with costs, including the costs of two
counsel.
(b)
The order of the court below is amended to read:
"The respondent is interdicted from infringing registered trade marks 91/9236 and 91/9237 of the applicant
by using in the course of trade and
Page 168 of [2004] 4 All SA 151 (SCA)
in relation to goods or services the mark depicted in annexure A7. The respondent is to pay the costs of the
application, including the costs of two counsel."
(Streicher, Navsa, Mthiyane JJA and Comrie AJA concurred in the judgment of Harms JA.)
For the appellant:
P Hodes SC and AR SholtoDouglas instructed by Murphy Wallace Slabbert Incorporated, Cape Town
For the respondent:
P Ginsburg SC and R Michau instructed by Adams & Adams, Cape Town
Amicus Curiae:
GJ Marcus SC and AD Stein
Footnotes
1 The proviso plays no role in the case.
2 The proviso of subsection (2) does also not arise. It reads:
"The right in subsection (1) does not extend to
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause
harm."
3 In what follows no clear distinction is drawn between SAB and the companies in the group.
4 TM 1979/03675.
5 The marks are 1991/09236 and 1991/09237 registered in class 32 (Schedule 3) in relation to beer, ale and port.
6 Cf First National Bank of SA Ltd v Barclays Bank Plc 2003 (4) SA 337 (SCA) para 10. [Also reported at [2003] 2 All SA 1
(SCA) Ed.]
7 "Canada's intellectual property framework: A comparative overview" 17 Intellectual Property Journal 125 at 187188. See
the trenchant comments of Kozinski J in White v Samsung Electronics America 989 F2d 1512 (1993).
8 Cadbury (Pty) Ltd v Beacon Sweets & Chocolates (Pty) Ltd 2000 (2) SA 771 (SCA) [also reported at [2000] 2 All SA 1 (A)
Ed] quoting Wagamama Ltd v City Centre Restaurants Plc [1995] FSR 713 (Ch D) at 728729.
9 Eg the minority judgment in Mutual of Omaha Insurance Co v Novak 836 F2d 397 at 405406.
10 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 (HL) at 291.
11 Cf MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA) para 9. [Also reported at [2000] 4 All SA
400 (A) Ed.]
12 Cf in general Thomas B Nachbar "Intellectual property and constitutional norms" [104] 2004 Columbia LR 272.
13 As to Canada: David Vaver Intellectual Property Law (1997) 19. More generally Christine Steiner "Intellectual property and
the right to culture" in Intellectual Property and Human Rights (1998), the proceedings of a panel discussion published by
World Intellectual Property Organisation and the Office of the UN High Commissioner for Human Rights.
14 2003 (3) SA 639 (SCA). [Also reported at [2002] 4 All SA 193 (SCA) Ed.]
15 Canon Kabushiki Kaisha v MetroGoldwynMayer Inc [1999] RPC 117 (ECJ) para 28.