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Despite this ostensible uncertainty about the outer appearance of the design of the AMC bus the respondent
has strenuously resisted the relief sought by the applicants and filed a comprehensive answering affidavit and
employed two counsel to put its case. In these circumstances it is probable that the respondent will manufacture
and sell the AMC bus if no order is granted. If the respondent's conduct in manufacturing, marketing and selling the
AMC bus is an infringement of the applicant's rights the applicants have a reasonable apprehension that it will
continue.
Because of the haste with which this matter was prepared each set of affidavits was dealt with as a separate
volume and appropriately paginated. The applicant's founding affidavit is contained in volume 1 pages 1 to 200. The
respondent's answering affidavit is contained in volume 2 pages 1 to 389(a) and the applicant's replying affidavit is
contained in volume 3 page 1 to 65.
The respondent's counsel sought to strike out certain passages in the applicants' affidavits. These are referred
to in the respondent's answering affidavit and the respondent's notice of application to strike out dated 28 March
2000. The court ruled that the parties should deal with the question of striking out in the course of argument. In the
event there was no more than a passing reference to the allegedly offending passages sought to be struck out. I
intend to deal with the evidence taking into account the respondent's objections to that evidence. It is not
necessary to strike out the passages as no prejudice can be suffered if the evidence is simply ignored where it
clearly offends against the rules of evidence. For the most part the respondent seeks to strike out opinions which
are not supported by facts or statements which are clearly hearsay. The notice of application to strike out was filed
in volume 3 pages 66 to 70.
During argument Mr Ginsburg on behalf of the applicants sought an amendment to prayer 2 of the notice of
motion dealing with passingoff by the insertion of two alternative prayers. This was opposed by Mr Bowman on
behalf of the respondent who contended that the respondent would be prejudiced. This was disputed by Mr
Ginsburg. He submitted that all the relevant issues have been canvassed in the affidavits and the two alternatives
to prayer 2 simply take into account possible findings the court could make. No ruling was made on the question of
the amendments during the hearing and it will be dealt with in this judgment.
I agree with Mr Ginsburg that the respondent cannot be prejudiced by the amendments sought. The alternative
prayers merely make provision for the appropriate relief which should be granted if the applicants establish
passingoff. No additional facts are relied upon and Mr Bowman did not suggest that the respondent would have to
file any answering evidence to deal with the alternative relief. The amendments will therefore be allowed. (The two
pages containing the two alternative prayers have been filed in volume 1 at 5(a) and 5(b).)
The applicants seek relief on the following grounds:
(1) Passingoff;
(2) Unlawful competition at common law;
(3) Unlawful competition because of contravention of the Trade Practices Act and the Merchandise Marks Act; and
(4) Trade Mark infringement.
(This is the applicants' terminology and I shall use the same terminology in this judgment.)
Page 225 of [2001] 2 All SA 219 (T)
At the conclusion of his argument Mr Ginsburg submitted that in the event of the court deciding to grant relief on
the grounds of passingoff or commonlaw unlawful competition it would not be necessary for the court to deal with
the alleged contravention of the two acts or the alleged trade mark infringement. Against that background I shall
deal with the relief sought.
Passingoff
The applicants' case is that the respondent's AMC bus has a shape or configuration which is the same as or very
similar to the shape or configuration of the applicant's Sprinter vehicle and that by marketing or selling the AMC bus
the respondent will be passingoff the AMC bus as the applicant's product.
It is important to bear in mind that the applicants do not yet market and sell a Sprinter bus. The applicants have
manufactured and exhibited a Sprinter bus but such reputation as the applicants have resides in the Sprinter
vehicle. The applicants' Sprinter vehicle is a multipurpose vehicle which is designed and made so that it can be
used in a variety of configurations for a variety of purposes. In their marketing and advertising of the vehicle the
applicants have emphasised the versatility of the vehicle. In the brochure entitled "Advantages" (volume 1 at 67 to
76 Annexure MB 7) the versatility of the vehicle is highlighted with reference to the wide variety of models, the
different weights, the fact that the vehicle is sold with three different wheelbases, and various other features. The
brochure states that one of the vehicle's qualities is its versatility whatever the versionchassis; chassis with
crewcab; pickup; pickup with crewcab; panelvan; panelvan with high roof; crewbus or crewbus with high roof. The
other marketing and advertising material bears out the claim of versatility. The applicants point out that a
substantial number of the Sprinter vehicles sold in South Africa have been converted by Mercedes Benz dealers, or
their customers, or body builders into taxis or buses. In support of this allegation the applicants have furnished
photographs of vehicles which have been converted into buses. These photographs demonstrate that the
conversions are not into a standard vehicle. All appear to be different.
This situation led the respondent to contend that the applicants could not show that their vehicle had become