The applicant also claims interim relief pending the decision of the application in the form of a temporary interdict.
The respondent resists the application and
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has filed a reply aimed primarily at opposing the claim for interim relief and reserves its right to file an amplified
affidavit in reply to the main claim when it has had the opportunity properly to prepare such affidavit. The present
judgment is concerned only with the claim for interim relief.
The founding affidavit contains a description of the process whereby footwear of the type in question is designed
and manufactured. The deponent frankly admits that the applicant searches through the relevant publications for
pictures of footwear designs which it considers promising and which it uses as a basis for its own product. The
design for its product is built up around a plastic foot form known as a last which is thereafter also utilised in the
manufacturer of the product. New designs are mostly formed around existing lasts although, in some instances, a
new last will be designed for a new range of footwear. The lasts are manufactured by specialised last makers and
bear identifying markings.
The process of constructing a design on the last is also fully described but in the light of developments during the
hearing, it is not necessary to set it forth in this judgment.
The deponent further testified that applicant caused to be manufactured for it by a last maker called Fancyform,
inter alia, two lasts identified by the names "Mary A" and "Deckrider" which it used to manufacture women's and
men's moccasins respectively. No details are given as to who designed these particular lasts or what skill, labour or
expense (if any) was involved in doing so. The deponent contented himself with a bald statement that "a last that
has been designed by a footwear manufacturer is for their (sic) exclusive use only unless permission has been
granted for a competitor to use such last". No distinctive or unique features of the lasts in question other than the
markings already mentioned are claimed by the deponent and it is clear from a reading of the founding affidavit as a
whole that its claim to exclusivity is based upon the pattern of the shoe built around the last and not the last per se.
This is expressly stated in paragraph 8 of the affidavit where the deponent says "the key to the entire shoe is the
pattern which is designed by a pattern cutter and which produces a standard. No standards are the same because
even beginning with the same last, no two designers will produce an identical pattern".
The case sought to be made out by the applicant in respect of the lasts is that the respondent is utilising the
lasts manufactured for it by a last maker called John Whittle Components, copied from the "Mary A" and "Deckrider"
lasts. It also attempted to make out that the respondent must have caused samples of these lasts to be stolen
from the applicant by its employees to be utilised for that purpose but the evidence which it adduced in support of
this allegation was wholly insufficient to prove it and I will disregard it.
The evidence relating to the copying of the lasts was, briefly, the following. The respondent had ordered from
John Whittle 60 pairs of a last design known as "Penny's L" and 65 pairs of a design called "Penny's M" to be
manufactured from a model supplied by the respondent. An inspection at John Whittle's premises revealed that one
of the lasts furnished by the respondent as a model bore a faint stamp of the name "Mary A" and the other had no
name but was of a similar configuration to the "Deckrider" last.
In response to these allegations the respondent states in its answering affidavit that the lasts which it
admittedly supplied as models to John Whittle were indeed originally manufactured for the applicant but were some
of a number of lasts which were scrapped by the applicant some two years previously as a result of a fire which
devastated its factory premises. They were purchased by the
Page 84 of [1999] 3 All SA 81 (N)
respondent as part of a lot of scrapped lasts from Chick's Scrapyard and the respondent was unaware of their
origin. It was accordingly alleged that the applicant had abandoned whatever proprietary rights it may have had in
the lasts in question.
Dealing with the claim that applicant enjoyed some form of intellectual property right in the design of the lasts,
the deponent to the answering affidavit, who is, as manager of the respondent firm, in a position to testify as to
conditions in the trade, states that a last is simply a functional tool used in the manufacture of footwear and follows
the general shape of the human foot. Its dimensions are dictated by the overall general dimensions of the "base
upper" to be used in the shoe to be designed around it. The critical aspect of the shoe manufacture, however, lies
in the design and not in the last.
This testimony is confirmed by a shoe designer, Mr Bux, who designed moccasin type shoes for the respondent
on lasts furnished to him by the respondent and which were apparently those or copies of those supplied to the
last maker as a model. Bux described these lasts as a commonly found and even classic shape for moccasins. He
said there was nothing unusual or distinctive about them and that they were virtually identical to the shape of lasts
which he had encountered elsewhere in the footwear industry.
When the matter came before me on 22 December, it was argued in the first place by counsel for the respondent
that it was not of sufficient urgency to warrant having been brought as an urgent application; that the respondent
had been prejudiced by the short time afforded to it to deal with the allegations against it, and that the application
should accordingly be dismissed. I do not propose to deal with the history of the matter in any detail; suffice it to
say that although the applicant's conduct in bringing these proceedings was not as expeditious as it could have
been, I do not think that it was so dilatory that I should penalise it by dismissing them out of hand. The prejudice to