from manufacturing, selling or dealing in any surfboards incorporating any representation of a spider or the
Applicant's registered trade mark of the word "spider".
Costs were granted in the Applicant's favour.
Notes
For Trade Marks, see LAWSA (Vol 29)
For the Trade Marks Act 194 of 1993, see Butterworths Statutes of South Africa 1996 (Vol 1)
For Estoppel, see LAWSA (Vol 9)
For Passing off, see LAWSA Reissues (Vol 2) at paragraph 399
Cases referred to in judgment
Bertram v Wood (1893) 10 SC 177
Burnkloof Caterers v Horseshoe Caterers Ltd 1974 (2) SA 125 (C)
Greenblatt v Hirschon 1958 (4) SA 371 (A)
Horowitz bv Brock and Others 1988 (2) SA 160 (A)
Hudson & Knight (Pty) Ltd v DH Brothers Industries (Pty) Ltd t/a Willow Town Oil and Cake Mills and Another
1979 (4) SA 221 (N)
Mitford's Executor v Ebden's Executors and Others 1917 AD 682
PlasconEvans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A)
Policansky Bros v Hermann and Canard 1910 TPD 1265
Union Wine Ltd v E Snell & Co Ltd 1990 (2) SA 189 (C)
Judgment
MCCALL J
The applicant carries on business as a manufacturer of surfboards. The first respondent was cited as a firm,
alternatively a close corporation, and in the answering affidavit it has been identified as a close corporation. The
second and third respondents are members of the first respondent which also carries on business as a
manufacturer of surfboards.
In this application the applicant originally claimed, as a matter of urgency, the following relief:
"THAT pending the outcome of an action to be instituted by the applicant against the respondents within a period of TWENTY
ONE (21) DAYS of the date of the finalisation of this application:
(a)
The respondents are interdicted and restrained from manufacturing, selling, or dealing in any surfboards on, or in
which, appears:
(i)
the logo incorporating a representation of a spider and the separate representation of a spider as they appear
on a photograph of a surfboard a copy of which is annexed hereto marked 'X';
(ii)
any visual illustration or representation whatsoever of a spider;
Page 319 of [1996] 4 All SA 316 (D)
(iii)
(b)
(c)
generally any mark, which infringes the applicant's trade mark known as 'SPIDER' held under Trade mark No.
88/5365.
The respondents are ordered to deliver to the applicant on or before the expiry of THREE (3) DAYS from the date of
this Order, affidavits deposed to by them in which they furnish an Inventory detailing the number and situation of:
(i)
all copies of the logos, illustrations, and representations referred to in paragraph 1(a)(i) and (ii) hereof
(hereinafter referred to as 'the infringing mark');
(ii)
the material or goods (in particular surfboards) to which the infringing mark is fixed, attached, or in which it is
incorporated, or in the process of attachment or incorporation where the infringing mark is, or is to be,
inseparable or incapable of being removed from such material or goods;
(iii)
all dealers appointed by the respondents to sell or deal in surfboards bearing the infringing mark.
The respondents are ordered jointly and severally, the one paying, the others to be absolved, to pay the applicant's
costs on the scale of attorney and client."
The application was opposed by all three respondents.
The applicant is the registered proprietor of a trade mark in the word "SPIDER" (hereinafter referred to as "the
trade mark") under Trade mark No. 88/5365 which was filed on 30 June 1988 and is due for renewal on 30 June
1998. It relates to "games and playthings, gymnastic and sporting articles (except clothing); ornaments and
decorations for Christmas trees".
The deponent to the founding affidavit, one Matthew Thomas Murphy, who is a shareholder in the applicant, is
known by the nickname "Spider". He has been building and shaping surfboards since 1963 and joined the business