[12] Three possibilities were mooted in argument. They were that the reputation attaching to Phyto Andro in South
Africa had been established by Infitech and now vested in Herbs Oils; that it had been established by and
vested in Herbal Zone; and that it had been established through the efforts of Herbal Zone and its sub
distributors on behalf of Herbal Zone International and vested in the latter. In considering these three
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possibilities, and indeed the case as a whole, it must be borne in mind that neither party asked for the matter
to be referred for the hearing of oral evidence. In the circumstances, the evidence had to be approached in
the light of the PlasconEvans rule so that the onus of proof resting on any party on an issue would only be
discharged on the requisite balance of probabilities if the undisputed evidence, together with that of the other
party, sufficed to discharge that onus.6
[13] Herbs Oils' claim that the reputation in the Phyto Andro mark vested in it can be disposed of fairly simply.
Infitech's role in regard to the product sold under that mark was that of a distributor. It acquired that role in
terms of a distribution agreement that said that Herbal Zone was the owner of all rights, title, trademarks and
logos in respect of the product. It was entitled to advertise the product and hold itself out as the sole
distributor, but in doing so it was obliged to use the trade mark Phyto Andro, which, as between it and Herbal
Zone, was the property of Herbal Zone. Furthermore it undertook to protect Herbal Zone's interests in South
Africa and not to "pledge, cede, assign, make over or in any way encumber" its intellectual property rights.
Whether the rights vested in Herbal Zone is neither here nor there. Once Infitech signed an agreement on
those terms its conduct under the distribution agreement falls to be measured against a contract under which
it disavowed any ability to acquire an interest in the trademark. In the face of that disavowal it is difficult to
see on what possible basis Infitech could nonetheless acquire the very rights it agreed did not belong to it,
much less to do so by its conduct in performing its obligations in terms of the distribution agreement.
[14] The evidence relied on in support of Infitech's claim to be the proprietor of the Phyto Andro mark was the
expenditure of "considerable time, money and effort" in establishing a market for Phyto Andro products in
South Africa. It said that these efforts commenced in 2008 or 2009 prior to the conclusion of the distribution
agreement, although Mr Herzallah said that the relationship only commenced early in 2010. Whichever date is
correct there was already a market for the product in South Africa at that stage, as it had been on sale in this
country through another distributor from 2006. Reliance was placed on some radio advertisements, but those
did nothing to convey that the product emanated from Infitech and that proprietorship of the mark vested in
it. After the distribution agreement was concluded the product's external packaging initially said that it was
manufactured by Herbal Zone International "for" Infitech, but this was later changed, at Infitech's instance, to
say that the product was "exclusively distributed" by Infitech. None of this, in my view, came anywhere near
establishing that proprietorship in the mark vested in Infitech and hence in Herbs Oils.
[15] Turning to Herbal Zone's claim that proprietorship in the mark and the reputation attaching to it vested in it,
the difficulty it faced lay in the
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confusion on the papers between it and Herbal Zone International and their respective roles in the
manufacture of Phyto Andro and its marketing in South Africa. It was as a result of this confusion that Bozalek
J held that Herbal Zone failed to show that the reputation in the mark vested in it and not Herbal Zone
International and nonsuited it on that ground. In my view, he was correct to do so.
[16] Mr Herzallah said that he became involved in Malaysia in the production of capsules containing an extract of
dried Tongkat Ali and had hit upon the name Phyto Andro under which to market the product. He arranged for
it to be manufactured by MAJ and sold Phyto Andro in various markets in the Far East and other countries.
After he moved to South Africa in 2005, he set up an entity called Etumax Trading CC ("Etumax") to market
Phyto Andro capsules in this country. In 2007, he decided to create Herbal Zone to take over the business of
Etumax and at the same time Herbal Zone International was established in Malaysia to "[take] over the
manufacture and export" of Phyto Andro capsules. Once Herbal Zone was created it became the sole importer
of Phyto Andro capsules into South Africa and its sole distributor in this country. In support of that allegation
he referred to an undated letter, apparently prepared in June 2015, signed by the Chief Operating Officer of
Herbal Zone International saying that Herbal Zone International was the manufacturer of Phyto Andro
Capsules for Him worldwide and that Herbal Zone was the only authorised importer into South Africa.
[17] When the disputes in this case arose, that letter was attached to a letter from Herbal Zone's attorney
addressed to the attorney for Infitech in which he described the situation in the following terms:
". . . the fact remains that Herbal Zone itself, whether the proprietary limited company operation in South Africa or
the international company operating out of Malaysia, is the original importer, distributor, and manufacturer of phyto
andro products."
Elsewhere the attorney said that Herbal Zone was importing Phyto Andro under licence from its sole
distributor, Herbal Zone International, but, contradictorily, then said that Herbal Zone was the manufacturer
of Phyto Andro products and capsules worldwide operating under the name and style of Herbal Zone
International. Throughout the letter there was a failure to distinguish between Herbal Zone, the South African
entity, and Herbal Zone International, the Malaysian entity. This failure to distinguish between the two
corporate entities and uncertainty about the true role of Herbal Zone characterised much of the evidence by
Mr Herzallah. Some examples pertinently illustrate this failing.
[18] Mr Herzallah's explanation of the role of Etumax could not be reconciled with the printouts from the accounting
records of Etumax that he annexed to his answering affidavit, which also served as the founding affidavit in
Herbal Zone's counterapplication. He described Etumax as a local distributor of Phyto Andro. However, the