proprietor of all the right, title and interest in relation to the mark JACOBSEN'S (paragraph 3.6). This
simply cannot be true. The first respondent was incorporated on 22 March 1994 and Cargo Card (Pty)
Ltd was registered on 24 March 1994.
[28] The two factual disputes will be considered in turn: first the dispute relating to the first respondent's
acquisition of the mark JACOBSEN'S: second the dispute relating to what was agreed about use of the mark
JACOBSEN'S in September 1998.
[29] Acquisition of the mark JACOBSEN'S by the first respondent
King alleges that he first entered into an oral agreement with Neil Jacobsen that a new entity, Cargo Card
(Pty) Ltd, would acquire all right, title and interest in relation to the JACOBSEN'S trade mark in return for Neil
Jacobsen acquiring 10 percent of the shares in that company. He then alleges that a new entity called Cargo
Card Holdings CC (ie the first respondent) which was formed to hold various assets, investments, including,
but not limited to trade marks, became the proprietor on the date of its incorpora
Page 600 of [2005] 2 All SA 588 (T)
tion of all right, title and interest in the mark JACOBSEN'S. He concludes by alleging that once the first
respondent became the proprietor of the mark JACOBSEN'S it allowed JCFS to use the trade mark under
licence.
On this version, King has known since 1994 how the first respondent acquired the mark. He also knew that
Jacobsen's Publishers continued to conduct its business and publish its works under the name JACOBSEN'S.
[30] I agree with the applicant's counsel that these allegations are so farfetched and clearly untenable that they
should be rejected on the papers. My reasons are as follows
(1)
The allegations do not provide a coherent explanation for the disposal by Jacobsen's Publishers of what
was clearly a valuable asset or the acquisition of the mark by the first respondent. Jacobsen's
Publishers had used the mark from 1966, when it was registered. The allegations as to its disposal and
acquisition are in all the circumstances "needlessly bald, vague and sketchy" compare Breitenbach v
Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228CF. With regard to the acquisition by Cargo Card (Pty) Ltd
it is not alleged when and where the oral agreement was entered into and who was present. No
commercial or logical reason for the disposal by Jacobsen's Publishers of the name is furnished.
According to King, Jacobsen's Publishers was not a party to the agreement and would not receive any
consideration for the mark even though it would have had to assign the mark to Cargo Card (Pty) Ltd.
Then there is no attempt to support the allegations with documentary evidence. There is no document
to record the agreement and the issue of ten percent of the shares to Neil Jacobsen is not established
with reference to the company's share register or share certificates. There is also no resolution of the
board of directors to record the issue of the shares. The acquisition of the mark by the first respondent
is dealt with in similar bald terms. It is simply alleged that on the date of its incorporation the first
respondent became the proprietor of all the right, title and interest in relation to the mark JACOBSEN'S.
It is not explained how this occurred or what the commercial or logical purpose of the acquisition was.
Once again there is no documentary evidence of the transaction. It is striking that in respect of both
transactions there is not one company document to support it, ie to show that it in fact occurred. It is
alleged that once the first respondent became proprietor of the mark JACOBSEN'S it allowed JCFS to use
the mark under licence. Once again there is no documentary evidence to support this allegation. It is
not stated that the licence was oral or written and when, where and by whom the licence agreement
was entered into. Finally there is no mention of what happened to Jacobsen's Publishers. The company
clearly intended to continue to do business using the name JACOBSEN'S but there is no allegation that it
was permitted to do so in terms of a licence or that it was threatened with legal proceedings if it
continued to use the name JACOBSEN'S without a licence;
(2)
On the face of it it is highly improbable that Jacobsen's Publishers would dispose of this mark, which
was clearly a valuable asset, for no consideration in terms of an oral agreement;
Page 601 of [2005] 2 All SA 588 (T)
(3)
It is highly improbable that Jacobsen's Publishers would dispose of the mark which it had used since
1966 and clearly intended to continue using;
(4)
It is highly improbable that Cargo Card (Pty) Ltd would dispose of the mark to the first respondent
without consideration yet none is alleged;
(5)
It is highly improbable that Cargo Card (Pty) Ltd would wish to acquire the mark the acquisition of
trade marks was not part of its business and the company never conducted any business;
(6)
The sequence of acquisitions, first by Cargo Card (Pty) Ltd and then by the first respondent, is highly
improbable if not impossible. The first respondent was registered two days before Cargo Card (Pty) Ltd.
There was therefore no need to assign the mark to Cargo Card (Pty) Ltd and then to the first
respondent;
(7)
It is highly improbable that the first respondent would wait four years before seeking to register the
mark if it had had commercial reasons for acquiring it. This delay is not explained;
(8)
If the first respondent had acquired the right, title and interest in relation to the mark JACOBSEN'S in
1994 in the manner in which King alleged, it is highly improbable that King, who represented the two
companies at all relevant times, would fail to mention this when it was appropriate to do so. Yet