Jacobsen's Publishers. The applicant and Neil Jacobsen commenced negotiations. When the negotiations had
reached an advanced stage the applicant raised the issue of the use of JACOBSEN'S by JCFS. Neil Jacobsen
undertook to ensure that JCFS ceased using the name JACOBSEN'S and changed its name to exclude the
name JACOBSEN'S. At a meeting with King he told King that he wished to sell the business of JP and that to
enable him to do this JCFS would have to cease using the word JACOBSEN'S in its name. King agreed to do
this. Neil Jacobsen and Jacobsen's Publishers then concluded the agreement
Page 598 of [2005] 2 All SA 588 (T)
with the applicant. As already mentioned Jacobsen's Publishers was required to deliver duly signed company
forms reflecting the change of JCFS's name to exclude the name JACOBSEN'S. JCFS duly delivered these
documents to Neil Jacobsen who delivered them to the applicant.
[25] On 14 October 1998 the first respondent, which was still Cargo Card Holdings CC, lodged applications for the
registration of the trade marks. According to King this was done because during October 1998 he had learned
more about trade marks and their commercial value and he realised the importance of securing registration.
[26] The disputed facts
(1)
According to the applicant, Jacobsen's Publishers and JCFS used the name JACOBSEN'S continuously and
without interruption until 1998 when Jacobsen's Publishers sold its business together with the mark to
the applicant. It is accordingly alleged by the applicant that the applicant is entitled to use the trade
mark.
The first respondent alleges that King and Neil Jacobsen entered into an oral agreement in terms of
which the newly registered Cargo Card (Pty) Ltd would acquire all right, title and interest in respect of
the JACOBSEN'S trade mark in return for the issue to Neil Jacobsen of 10 % of the shares in Cargo Card
(Pty) Ltd. King alleges that later, on 22 March 1994, when the first respondent was registered, the first
respondent became the proprietor of all right, title and interest in respect of the trade mark
JACOBSEN'S. Accordingly, says King, the first respondent lodged its applications for the trade marks on
14 October 1998. King also alleges that once the first respondent became the proprietor of the trade
mark JACOBSEN'S (clearly prior to registration) the first respondent permitted JCFS to use the trade
mark under licence.
(2)
The applicant's case is that in September 1998 when the applicant was negotiating with Neil Jacobsen
for the purchase of Jacobsen's Publishers' business Neil Jacobsen agreed with King on behalf of JCFS
that JCFS would cease to use the name JACOBSEN'S.
As against that the first respondent alleges that when Neil Jacobsen approached King in September
1998 to arrange for the name JACOBSEN'S to be removed from JCFS's name he, King, had immediately
pointed out to Neil Jacobsen that the first respondent would still have all the rights in respect of the
trade mark JACOBSEN'S. According to King, Neil Jacobsen had replied that this was in order as the
purchaser only wished to have the name JACOBSEN'S removed from the name of the company. Neil
Jacobsen also had no objection to JCFS continuing to trade under the name JACOBSEN'S COMPUTER
FREIGHT SYSTEMS as all that he had to do was to ensure that the name JACOBSEN'S was deleted from
the name of the company.
It is these allegations that the applicant contends are so farfetched and clearly untenable that they
can be rejected on the papers and that they can be rejected because they are demonstrably false. They
are also denied by Neil Jacobsen who states that he did not know about the first respondent's
Page 599 of [2005] 2 All SA 588 (T)
existence in September 1998 and that he had pertinently stated that JCFS would not be entitled to use
the name JACOBSEN'S.
[27] In dealing with these disputes it must be borne in mind that on the papers it has been shown that King, who
acted on behalf of the first respondent and JCFS at all times, and is the deponent to the answering affidavit,
is unreliable in at least the following three respects:
(1)
He contradicted himself about what was discussed when Neil Jacobsen approached him in September
1998 with the request that JCFS not use the name JACOBSEN'S. He first testified that they discussed
the use of the mark he had pointed out to Neil Jacobsen that the first respondent would still have all
the rights in relation to the mark JACOBSEN'S and that Neil Jacobsen had no objection to this and that
he informed Neil Jacobsen that JCFS would not continue to trade as JACOBSEN'S COMPUTER FREIGHT
SYSTEMS and that Neil Jacobsen had said that all he needed to do was delete the name JACOBSEN'S
from the company (paragraphs 3.8 and 2.9). Later he testified that there were no discussions with
regard to the use of the mark JACOBSEN'S. In his mind and the mind of Neil Jacobsen the first
respondent was the owner of the mark JACOBSEN'S (paragraph 15.3);
(2)
He testified that when Neil Jacobsen informed him that JCFS must stop using the name JACOBSEN'S they
agreed that JCFS would repay the loan of R51 000 and acquire his shareholding and that this was done.
This evidence is contradicted by the reliable objective evidence of Mr Fahy who was the auditor of
Jacobsen's Publishers and JCFS in 1998. Mr Fahy confirms that he was instructed to write off this loan by
the directors of Jacobsen's Publishers and that he duly did so;
(3)
He testified that he first entered into an oral agreement with Neil Jacobsen in terms of which Cargo
Card (Pty) Ltd acquired all the right, title and interest in relation to the mark JACOBSEN'S and that later,
when the first respondent was incorporated on 22 March 1994, the first respondent became the