(a)
the respondents new logo and stylised representation of a spider so nearly resemble the applicant's mark as to be
likely to deceive or cause confusion;
(b)
the actions of the respondents constitute an infringement of section 34(1)(a) of the Trade Marks Act No 194 of 1993
("the Act"), alternatively section 34(1)(c ) of the Act;
(c)
alternatively, that the use by the respondents of their new logo and stylised representation of a spider constitute a
passing off;
and it furnishes reasons for these contentions. It maintains that the matter is urgent because it is suffering
damages on a daily basis as a result of the respondents' activities, which damages will be very difficult, if not
impossible, to compute accurately.
In opposing the applicant's application, the respondents:
(a)
submitted that the applicant had not made out a case of urgency;
(b)
purported to invoke the exceptio rei judicatae, alternatively "the once and for all rule", regard being had to the
applicant's previous application;
(c)
submitted, in the alternative, that there had been acquiescence or waiver by the applicant or that it was estopped;
(d)
in any event, denied that there was an infringement of the applicant's trade mark by the use of the representation of
a spider, either alone or within an oval shape;
(e)
submitted, in any event, that no case had been made out that the applicant's mark is "well known in the Republic" as
contemplated by section 34(1)(c ) of the Act;
(f )
denied that there had been a passing off.
Urgency:
The question of the urgency of this application is to some extent bound up with factual issues relating to the
applicant's knowledge of the Jarvis spider device before the previous application was brought and whether the
applicant knew or ought to have known that the respondents would continue to use that device after that
application was settled. There are disputes of fact on these issues. I am inclined to think that such urgency as there
may be in this matter did not warrant the application being lodged on 21 May 1996 for hearing, as a matter of
Page 322 of [1996] 4 All SA 316 (D)
urgency, as soon as 28 May 1996. Be that as it may, on 28 May 1996 the matter was adjourned to 6 June 1996
with the respondents being given leave to file affidavits by noon on 4 June 1996 and, as I understand it, the
presiding Judge regarded the matter as being sufficiently urgent to warrant its being afforded preference on the
opposed motion roll. This resulted in the matter being set down on the opposed roll, before me, on 6 June 1996, by
which date lengthy answering affidavits and replying affidavits had been filed, and both parties had filed written
heads of argument. Because of the congestion of the roll on 6 June 1996, the time taken to argue the matter and
the number of issues raised in argument, it was obviously impossible to give judgment on that date and it became
necessary to reserve judgment. Had there been any question of dismissing the application on the grounds that it
was not sufficiently urgent to be dealt with as a matter of urgency, that should have been raised and decided on 28
May 1996. That issue was not dealt with on that day and there is no suggestion that the respondents have been
prejudiced by the shortness of the time allowed to them to file replying affidavits or to prepare for argument. The
question of urgency has thus become somewhat academic and it would be absurd to dismiss the application at this
stage on the grounds that it was originally not sufficiently urgent to warrant a departure from the times prescribed
in rule 6(5)(b) of the Consolidated Rules of the Supreme Court. The objection based on the lack of urgency therefore
falls away.
Res Judicata or the "Once and for all" Rule:
The respondents submitted that the first application had already dealt with issues concerning the getup of the
applicant's boards and the respondents' use of a representation of a spider, that substantially the same relief was
being sought as was sought in the first application or could have been sought in the first application, that the
parties were substantially the same and that, apart from the issue of trade mark infringement, the applicant's cause
of action was essentially based on the lex Aquilia and could not be divided into two separate causes of action
arising from the same delict.
The respondents relied on the following passage from the judgment of Van Deventer AJ in Union Wine Ltd v E
Snell & Co Ltd 1990 (2) SA 189 (C) at 196DF:
"Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae
or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to
more than one remedy a plaintiff who pursues one of those remedies and has obtained judgment thereupon can be met with
a plea of res judicata if he should institute a second action to pursue one of the other remedies."
In Horowitz bv Brock and Others 1988 (2) SA 160 (A) at 178 Smalberger JA said, at 178HI:
"The requisites of a valid defence of res judicata in RomanDutch law are that the matter adjudicated upon, on which the
defence relies, must have been for the same cause, between the same parties, and the same thing must have been
demanded. (Voet Commentarius ad Pandectas 44.2.3; Bertram v Wood (1893) 10 SC 177 at 180; Mitford's Executor v
Ebden's Executors and Others 1917 AD 682 at 686.) The rule that the same thing must have been demanded in both actions
has been held to mean
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