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in 1991, have understood that any goods or services to which it was or would be attached were of the nature
or connected with games of that ilk. The Board and Uthingo respond that, as it was put by the chief executive
of Uthingo in his founding affidavit in the infringement proceedings,
"Prior to the inception of the National Lottery in accordance with the Lotteries Act, the word 'lotto' was an obscure
word in South Africa and was, for all intents and purposes, not used in this country . . . When one has regard to the
dictionary definition of the word 'lotto' it is clear that the primary meaning of the word is a game, similar to bingo
(which is vastly different from a lottery such as that run by the second respondent [Uthingo] and in connection with
which [it] uses the trade mark Lotto."
[19] The Board and Uthingo submit further that the game which Uthingo offered under the trade mark was, if not
sui generis, then at least so distinct from existing definitions of the word "lotto" as to provide a character to
that word which the public would and did readily attach to the National Lottery and, thereby, to the Board and
its authorised operator.
[20] The first thing to notice about the response and submission is that they depend not on the distinctiveness of
the mark at the date of registration, but upon the nuance said to be cast upon the word "lotto" by the
peculiar use to which the Board has put it. No such use was proved at or prior to the date of registration.
Indeed it is clear that such a public understanding could not have arisen for eight or nine years after
registration, if at all. Counsel for the Board and Uthingo submitted, however, that even prior to Uthingo
creating a distinctive character by use, such appreciation of the substance of the word as the public may have
possessed did not result in any common meaning or certainty sufficient to exclude the right of registration in
1991.
[21] The parties sought to persuade the court a quo of the meaning of lotto by introducing expert opinion derived
from the experts' trawling through dictionary definitions. That was inappropriate and unnecessary as
dictionaries speak for themselves unless called in question for good reason and the courts are, generally,
presumed to be capable of finding and understanding such information without expert assistance.
[22] In this case, it seems to me, recourse to dictionaries printed before or more or less contemporaneously with
the registration of the trade mark in question, support the appellant's submissions rather than those of the
Board and Uthingo. (I say "more or less" since it is notorious that the production of dictionaries lags the use
of words included in them.)
View Parallel Citation
[23] There is no doubt that "lotto" is not a word recently invented, but, on the contrary, one which was imported
into the English language in the late eighteenth century, probably from Italian, where it connoted a particular
form of lottery, although it was perhaps already known in England as "a game played with cards divided into
numbered and blank squares and numbered discs to be drawn on the principle of a lottery": Oxford English
Dictionary (1976) sub nom "lotto, loto". The English Dictionary ed HC Wyld (1952) sub nom "lotto" identifies the
origin of the word as Italian with Germanic roots and defines it as a:
"Game of chance played with cards bearing five numbers in a line, and numbered balls drawn from a bag, the object
being to cover all the numbers in a line or as many as possible. The right to cover a number on a card is determined
by the same number being drawn from the bag."
Page 477 of [2009] 4 All SA 470 (SCA)
[24] The New Shorter Oxford English Dictionary, (1993) defines "lotto" as:
"1. A game of chance resembling bingo, in which numbers drawn as in a lottery are to be matched with numbers on a
card, the winner being the first to have a card with a row of numbers all of which have been drawn. 2. A lottery (in
Italy),"
while The New Oxford Dictionary of English, (1998) tells us that "lotto" is a children's game similar to bingo, in
which numbered or illustrated counters or cards are drawn by the players, but adds: "chiefly N. Amer, a
lottery". The New Penguin English Dictionary, (2000) sub nom "lotto" has "1. a children's game similar to bingo
2. N. Amer, Aus. = lottery".
[25] The venerable American work, Webster's Third New International Dictionary (1985) defines "lotto" as "a game
played by drawing numbered disks from a bag or the like and covering corresponding numbers on cards, the
winner being the first player to fill a row".
[26] According to Collins' New Compact English Dictionary, "lotto" is a:
"game of chance in which numbers are drawn and called out while the players cover the corresponding numbers on
cards, the winner being the first to cover all the numbers or a particular row".
[27] The South African Pocket Oxford Dictionary of Current English (1974) identifies "lotto" as a "game of chance like
bingo, but with numbers drawn by players instead of called [Italian]".
[28] But, as the presiding judge pointed out to counsel during argument, at least as legitimate and valid a source
for plumbing the mind of the South African public in 1991 was the use of the word among Afrikaansspeakers.
He drew attention to the 1981 edition of the Verklarende Handwoordeboek van die Afrikaanse Taal ("HAT")
(1981) at 664, which contains the following entry:
"lotto (It.) Tipe dobbelspel waarby die spelers elk 'n kaart met nommers kry en die een wen wie se nommers die
eerste ooreenstem met nommers wat lukraak getrek word."