South Africa
AdcockIngram Products Limited v Beecham SA (Pty) Limited 1977 (4) SA 434 (W)
Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Limited 1976 (1) SA 530 (T)
Berman Brothers (Pty) Limited v Sodastream Limited and another 1986 (3) SA 209 (A)
Cambridge Plan AG and another v Moore and others 1987 (4) SA 821 (D)
Capital Estate and General Agencies (Pty) Ltd and Others v Holiday Inns Inc and others 1977 (2) SA 916 (A)
Page 221 of [2001] 2 All SA 219 (T)
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A); 1998 (3) SA 938 (A)
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Limited (1) 1988 (2) SA 350 (W)
Hollywood Curl (Pty) Limited and another v Twins Products (Pty) Limited (1) 1989 (1) SA 236 (A)
Long John International Limited v Stellenbosch Wine Trust (Pty) Limited and others 1990 (4) SA 136 (D)
Pepsico Inc and others v United Tobacco Co Limited 1988 (2) SA 334 (W)
PlasconEvans Paints Limited v Van Riebeeck Paints (Pty) Limited 1984 (3) SA 623 (A)
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A)
Schultz v Butt 1986 (3) SA 667 (A)
WeberStephen Products Co v Alrite Engineering (Pty) Limited 1992 (2) SA 489 (A)
Williams t/a Jenifer Williams & Associates v Life Line Southern Transvaal 1996 (3) SA 408 (A)
United Kingdom
Jarman and Platt Ltd v I Barget Ltd and others 1977 FSR 260 (CA)
John Haig & Co Limited v Forth Blending Co Ltd 70 (1953) RPC 259 (Court of Session)
Reckitt & Colman Products Ltd v Borden Inc and others 1990 RPC 341
T Oertli AG v EJ Bowman (London) Ltd 1957 RPC 388 (CA)
Judgment
SOUTHWOOD J: In this urgent application the applicants seek interdicts which will prevent the respondent from
manufacturing, exhibiting, marketing, selling or offering for sale a bus which is deceptively similar to the applicant's
Sprinter vehicle and an interdict prohibiting the respondent from infringing the first applicant's trade marks
1048/38/6 and 64/4160 in respect of a threepoint star device. The applicants rely in the first instance on unlawful
competition. They allege that by exhibiting, manufacturing, marketing, selling or offering for sale the bus in question
(which I shall refer to as the "AMC bus") the respondent will be passing off the vehicle as that of the applicants. The
applicants further allege that the conduct of the respondent is unlawful because of the way in which the
respondent has manufactured the bus. The applicants also allege that the respondent's conduct is a contravention
of section 9 of the Trade Practices Act, 76 of 1976 and/or section 6 of the Merchandise Mark Act, 17 of 1941. The
applicants rely in the second place on the provisions of the Trade Marks Act, 194 of 1993. They allege that the
respondent is using the trade mark threepoint star device without the authority of the applicants and that is a
contravention of section 34(1)(a) and 34(1)(c) of the Trade Marks Act.
In the notice of motion the applicants seek final alternatively interim relief. In argument, Mr Ginsburg, on behalf of
the applicant, submitted that there are no material disputes of fact on the papers and requested that final relief be
granted. The principles set out in PlasconEvans Paints Limited v Van Riebeeck Paints (Pty) Limited 1984 (3) SA 623 (A)
at 634E635C must be applied if there are disputes of fact on the affidavits. Neither side applied for any deponent
to be called for crossexamination and neither side suggested that the evidence of any parties should be rejected
on the papers.
Page 222 of [2001] 2 All SA 219 (T)
The first applicant is a German company. It and its predecessorintitle, are and have been the designers,
developers, and manufacturers of the internationally wellknown range of Mercedes Benz vehicles. The first
applicant is the successorintitle to Daimler Benz AG which from about 1926 manufactured itself and through its
licensees and subsidiaries in many countries of the world a wide range of vehicles of all descriptions under the
trade mark Mercedes Benz and the threepointed star device. The first applicant and its predecessor advertised and
sold their vehicles throughout the world including South Africa. These vehicles included passenger cars and
commercial vehicles of various types and descriptions.
The first applicant and Daimler Benz AG have conducted business in South Africa since 1954 when Daimler Benz
AG opened an office in South Africa and commenced the sale and importation of Mercedes Benz vehicles into South
Africa.
From 1966 Daimler Benz AG commenced acquiring shares in the company which is now known as Daimler
Chrysler South Africa (Pty) Limited ie the second applicant. By 1998 Daimler Benz AG had acquired all the shares in