the front of the vehicle can take if one wishes to optimise the aerodynamics of the vehicle. He also deals with
certain other details of the AMC bus. It is striking that Mr Nicholls does not deal with any wind tunnel or
computerised evaluation process followed by the respondent in order to arrive at the shape of the AMC bus and in
particular its front end or cab and the wheel design. It therefore must be accepted that the applicant's work and
effort in creating its Sprinter vehicles has not been matched by the respondent. In fact the overwhelming probability
is that the respondent has simply used the applicants' own Mercedes Benz Sprinter body parts, modified where
necessary although very little in order to create the AMC bus. This is the most probable conclusion on the facts
whether or not it is stated by the witnesses.
In my opinion this conduct is not fair as between two competing motor vehicle manufacturers and should not be
countenanced. Such conduct offends against the general sense of justice in the community and the boni mores. With
regard to the ethics of the respondent's conduct Nicolaas Vermeulen's undisputed evidence is significant. According
to Vermeulen:
"The replicating or copying of vehicle designs by manufacturers particularly in so a obvious manner is a
practice that does not happen in South Africa. Moreover, it is a practice that is not in the interest of the South
African automobile industry. Most vehicle manufacturers pride themselves on their vehicle's designs which can
often have much goodwill. Misappropriating the goodwill in a vehicle's design is not considered, in my experience
and to my knowledge, ethically or morally acceptable in this country."
Mr Bowman argued that all the parts used by the respondent were legitimately purchased by the respondent in the
ordinary course of business. In some cases they are parts which the applicants themselves market and distribute.
In my view this does not assist the respondent. The applicants do not make these parts available to the market to
enable the purchasers to make up replicas of the applicants' Sprinter vehicles and sell them in competition with the
applicants' vehicles. They are clearly intended to be used for the maintenance and repair of Sprinter vehicles. That is
also how the market would understand the position.
The applicants have therefore made out a case based on unlawful competition and are entitled to relief on that
ground. The relief will be limited to the AMC bus as this is the only vehicle in respect of which the applicants have
made out a case.
Strictly speaking the conclusions relating to passingoff and commonlaw unlawful competition render it
unnecessary to deal with alleged unlawful competition based on the contravention of statutes. However, since
these matters were dealt with in the heads of argument filed by the parties I shall briefly record my views.
Unlawful Competition Contravention of Statutes
The applicants' case is that by applying its trade mark AMC to the AMC bus displayed at the Kyalami Exhibition the
respondent contravened section 9(b) of the Trade Practices Act and section 6(1) of the Merchandise Marks Act.
Section 9(b) of the Trade Practices Act reads as follows:
"No person shall,
(b)
in connection with the sale or leasing of goods, directly or indirectly make any statement or communication or
give any description or indication
Page 232 of [2001] 2 All SA 219 (T)
which is false or misleading in material respects in respect of the nature, properties, advantages or uses of
such goods or in respect of the manner in, conditions on or prices at which such goods may be purchased,
leased or otherwise acquired."
In terms of section 6(1) of the Merchandise Marks Act:
"Any person who applies a false trade description to goods shall be guilty of an offence."
In terms of section 1 of the Act, a "false trade description" means any trade description which is false in a material
respect as regards the goods to which it is applied, and "trade description" means inter alia any direct or indirect
indication as to the name of the manufacturer or producer of any goods.
The applicants contend that because a not insignificant proportion of the respondent's vehicle consists of Mercedes
Benz parts the application of the trade mark AMC to the vehicle is misleading. I do not agree. Firstly, the trade mark
AMC is nothing more than that. It is not a statement, communication or statement regarding the nature or
properties of the goods for the purposes of section 9 of the Trade Practices Act or a false trade description for the
purposes of section 6 of the Merchandise Marks Act. Secondly the trade mark AMC correctly designates the product
created by the respondent and not its constituent parts. The applicants have therefore not shown that they are
entitled to relief on this ground.
Trade Mark Infringement
This cause of action is based on the fact that the respondent has used a number of Mercedes Benz parts or
components in the AMC bus. These include parts such as the radiator, the engine air intake, the bonnet catch, the
windscreen washer reservoir, the hydraulic oil reservoir and the brake booster. Most of these parts bear the first
applicant's three cornered star device trade mark. The applicants contend that the use of these parts bearing the
trade mark constitutes infringement in terms of section 34(1)(a) and section 34(1)(c) of the Trade Marks Act.
Section 34(1)(a) reads as follows.
"The rights acquired by registration of a trade mark are infringed by