some way associated with each other.
[16] For the sake of completeness I should also note that during the hearing the applicant undertook not to open
another business using the name Nino's or any derivative thereof. It has no intention of operating any restaurant
under the name of Nino other than those already established in Greenmarket Square and Camps Bay.
Page 537 of [1998] 3 All SA 527 (C)
[17] Despite the length of the papers in the two applications (comprising approximately 1 200 pages) the factual
disputes on the papers as supplemented by the oral evidence, are relatively confined. I propose to outline the
relevant facts and thereafter consider the issues which arise in the light of the facts and the applicable legal
principles.
The factual background
[18] The two members of the applicant, each having a 50% interest, are brothers, Francesco Stuart Zanasi
("Francesco Zanasi") and Christian Primo Zanasi ("Christian Zanasi"). Their father, Giorgio Primo Zanasi ("Georgio
Zanasi"), who has been known as "Nino" throughout his life, was a wellknown Johannesburg restaurateur. He was
born in Genoa, Italy, and immigrated to South Africa many years ago. He worked as a musician until 1978 when he
started a restaurant called "Nino Da Genova" in Melville, Johannesburg. Although they were young boys at the time
Francesco and Christian Zanasi helped in the restaurant and Francesco learnt to cook there. In 1987 that business
was sold.
[19] Francesco and Christian Zanasi then proposed to their father that they start another family restaurant. A
coffee shop and restaurant known as Nino Coffee and Sandwich Bar was established in Braamfontein,
Johannesburg. Giorgio Zanasi, his two sons when they were not doing their military service and Nino Bompani
("Bompani") were involved in running that business. The focus of the business was the sale of open sandwiches
and coffee. The sandwich bar concept of providing a wide range of fillings, which could be combined with various
types of bread or rolls, is said to have been devised by Giorgio Zanasi and Bompani.
[20] With effect from 1 March 1989 that business was sold to Korkorris, one of the members of the first
respondent. I will in due course refer in more detail to the terms and consequences of this sale. Giorgio Zanasi and
his two sons thereafter established what was described as an upmarket restaurant known as "Archangelo" in the
Sanlam Centre, situated in the central business district of Johannesburg. Although there was some dispute in this
regard Francesco Zanasi testified that within the same building housing the restaurant they operated a bar known
as "Nino's Bar" and a takeaway sandwich business known as "Nino TakeAway". In the present case nothing turns
on the use of the name "Nino" in those circumstances. The Zanasi family ran these businesses until 1992 when they
decided to relocate to Cape Town.
View Parallel Citation
[21] Francesco and Christian Zanasi purchased a business known as Houtens Coffee Bar and Restaurant that
operated from the premises now occupied by Nino Greenmarket Square. The premises were refurbished and
converted into an Italian restaurant, bar and coffee shop and the name was changed to Nino. The applicant was
incorporated on 18 May 1992. Nino Greenmarket Square opened during June 1992. During the first couple of years
Giorgio Zanasi spent a considerable amount of time involved in running the restaurant. He also assisted his sons
financially. It is clear that his experience and personality were important factors which helped to make that business
successful. Nino Greenmarket Square has become a wellknown restaurant in Cape Town with an annual turnover
in excess of R2 million.
Page 538 of [1998] 3 All SA 527 (C)
[22] After Korkorris purchased the Braamfontein restaurant in 1989 he traded there under the name Nino's Italian
Coffee and Sandwich Bar. He continued to utilise the same sandwich bar concept that had been devised by his
predecessors. He had some previous experience in the franchise business and he subsequently decided to
franchise Nino's Italian Coffee and Sandwich Bars. The first franchised store opened in Eastgate in 1992. Thereafter
other stores opened elsewhere in Gauteng predominantly in shopping malls, office parks and other business areas.
The first respondent was incorporated on 17 November 1993 and it now owns the franchise operation. Korkorris
and his brotherinlaw Joulios Michaeledes ("Michaeledes") each have a 40 per cent member's interest in the first
respondent and a rugby international, James Small ("Small"), owns the remaining 20 per cent interest.
[23] As its franchise business grew the first respondent decided to extend it to the Western Cape. Representatives
of the applicant and the first respondent had various discussions at various times in regard to the use of the name
Nino in the Western Cape but no agreement could be reached.
[24] During March 1996 the first respondent opened a coffee shop known as "Panini Espresso and Sandwich Bar"
in St George's Mall, Cape Town. This is essentially a coffee bar with a limited range of sandwiches and pasta dishes
available. It was the first respondent's intention to establish a separate franchise operation distinct from the Nino's
Italian Coffee and Sandwich Bars, under the name of Panini. A further Panini store has been opened in Knysna.
[25] On 6 January 1997 the first respondent opened Nino's Stellenbosch. This was followed later that year by the
opening of Nino's Cavendish Square. There are now some 22 Nino's Italian Coffee and Sandwich Bars throughout
the country. By far the majority are situated in Gauteng, with two of them in the Western Cape.
[26] The first respondent also has a franchise operation known as Nino's Internet Cafes and there are five
franchisees at present, 3 in Gauteng, 1 in Durban and 1 in Cape Town. Nino's Internet Café Foreshore, operated by