Daimler Chrysler Aktiengesellschaft and another v Afinta Motor Corporation (Pty) Ltd
 2 All SA 219 (T)
Transvaal Provincial Division
28 March 2000
M Snyman and D Cloete
. Editor's Summary . Cases Referred to . Judgment .
 Intellectual property law Trade marks Infringement of Requirements Onus on complainant.
 Intellectual property rights Unlawful competition Application for interdict Use of competitor's parts and
 Trade and competition Passing off Inquiry into distinctiveness of complainant's product.
In an urgent application, the Applicants sought interdicts preventing the Respondent from manufacturing, exhibiting,
marketing, selling or offering for sale a bus similar to that of the Applicant, and an interdict prohibiting the
Respondent from infringing the First Applicant's trade marks.
The dispute between the parties arose as a result of a taxi recapitalisation project. Both the Second Applicant
and the Respondent submitted proposals for the supply of 18 seat buses and both were shortlisted for the
manufacture and supply of the buses to the taxi industry. As a result they were in direct competition with each
other in the tender process. Upon realising that the Respondent's vehicle was similar to their own, the Applicants
filed for the following relief: passingoff; unlawful competition; and trade mark infringement.
Held (i) Passingoff
In support of this contention, the Applicants maintained that the Respondents' bus had a shape which was very
similar to the shape of their own bus, and that by marketing or selling the Respondent's bus they would be
passingoff that bus
Page 220 of  2 All SA 219 (T)
as the Applicant's product. In this regard, Applicants did not rely on a direct or express representation by
Respondent that its bus was that of the Applicant. Instead, reliance was placed on an indirect representation in the
form of similar appearance.
It was held that in the absence of direct evidence as to the reputation of a product and its consequent
distinctiveness for the purposes of passingoff proceedings, the court is required to infer from the evidence relating
to the use of the product that it has in fact become distinctive. The Court looked at the features common to all the
Applicants' buses and found that they were indeed distinctive. The fact that the Respondent applied its own name
and trade mark to the vehicle it manufactured, would not totally eliminate confusion between this vehicle and that
of the Applicants. The Applicants were therefore entitled to relief on the basis of passingoff.
(ii) Unlawful competition
While competition between traders is encouraged, this may not occur in such a way as to interfere with the rights of
competitors. To succeed in an action for unlawful competition, the Applicant had to establish all the requisites of
aquilian liability, including proof that the Respondent had committed an unlawful act. The evidence and the
Respondent's own admissions showed that it had produced its vehicle using the applicant's parts and design. This
conduct was seen as unfair and resulted in a finding that the Applicants were also entitled to relief on the basis of
(iii) Trade mark infringement
Under this heading, the Applicants based their argument on the use of its parts in the Respondent's bus. Most of
these parts bore the Applicant's trade mark. This was said to constitute an infringement of section 34(1)(a) and (c)
of the Trade Marks Act 194 of 1993. The Court set out the requirements to be established by the Applicant in
discharging its onus in this regard. The Applicant was unsuccessful in its attempts to do this.
However, having proved passingoff and unlawful competition, they were granted the interdicts sought.
For Intellectual Property Law see LAWSA Reissue (Vol 20(1), paras 55 91)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed. H N refers to
corresponding headnote number.)