the right question been asked by an officious bystander at the right time (Strydom v Duvenhage NO en 'n ander1
1998 (4) SA 1037 (A) at 1044). I accordingly hold against the respondent on this point.
I believe that all the arguments with regard to the copyright leg of the case have now been dealt with. My
overall conclusion is that copyright in Annexure A vests in the first applicant, that he is entitled to protection in
respect of Annexure F, being an adaptation of A, and that he has not parted with any rights in respect of either
Annexure. Inasmuch as Mr SholtoDouglas informed me that relief is sought in the alternative, it is unnecessary for
me to determine the passingoff leg of the case.
As for the relief to be granted, it was not suggested by counsel for the respondent that interdictory relief would
be inappropriate. Counsel for the applicants
Page 374 of [2000] 3 All SA 367 (C?)
asked for an order in terms of prayer A.1 of the amended notice of motion save that "C" should be changed to "F".
That is clearly proper. As for prayer A.2, delivery up of labels (and masters), I think it would be fair to allow the
respondent a period of one month within which to comply. Mr SholtoDouglas further asked that prayers A.3 and A.4,
relating to damages or other recompense, be postponed. As for prayer A.5, it is clear that costs must follow the
result.
The order is in the following terms:
1.
The respondent is interdicted from infringing the first applicant's right in and to the copyright in the label used
on wine bottles, a representation whereof is annexed to the notice of motion marked "A", or the lawfully
produced adaptation thereof, a representation of which is annexed, marked "F", to the founding affidavit, by
either reproducing such label in any manner or form, making an adaptation of the label or reproducing an
adaptation of the label in any manner or form.
2.
The respondent is directed, within a period of one month from the date of this judgment, to deliver up to the
first applicant for destruction all copies of the said label or any adaptation thereof, and in particular of
Annexure F, and including any masters used in their manufacture.
3.
Prayers A.3 and A.4 are postponed sine die.
4.
The respondent is ordered to pay the costs of this application.
5.
No order is made in respect of prayers B1, 2 and 3.
For the applicants:
AR SholtoDouglas instructed by Herold Gie & Broadhead, Cape Town
For the respondent:
WJ Vos instructed by Oosthuizen Meyer De Waal Incorporated, Cape Town
Footnotes
1
Also reported at [1998] 4 All SA 492 (A) Ed.