save for those items on the printed table menus that presently incorporate the name Nino's as the name of a
dish to be served in the restaurant before 17h00 on 11/8/97;
1.3
The Respondent shall not open its Camps Bay premises to any member of the public until such time as the
exterior signs referred to in 1.2 above shall have been removed.
2.
The Applicant tenders to pay the Respondent's damages as it may prove arising out of the operation of this Rule Nisi.
3.
That the Applicant consents to an order that it will not open a Nino's Restaurant or utilise the name Nino's on any
restaurant or coffee shop within the central business district of the City of Cape Town as described by the manuscript
Bold Line as depicted on the map of the City of Cape Town annexed hereto marked 'X' but excluding the site where
the Applicant's present Nino's Internet Café is situate on the Foreshore.
4.
The application is hereby consolidated with the proceedings under case number 7405/97.
5.
Costs of the application are reserved."
[12] The matter was further postponed to 22 October 1997 when, by agreement between the parties, the matter
was referred by Farlam J for the hearing, on 18 February 1998, of oral evidence on the following issues:
"1.1
Whether Applicant conducted the business NINO from no 52 Shortmarket Street, Cape Town prior to the registration
of First Respondent's trade mark;
1.2
Whether First and Second Respondent had, at the date when the application for an interdict was launched, reputation
or goodwill associated with the name NINO, or any combination of words containing the said word, in the Western
Cape, and if so, whether such goodwill extended to Cavendish Square and/or Camps Bay.
1.3
Whether Applicant had, at the date when the application for an interdict was launched, reputation or goodwill
associated with the name NINO, or any combination of words containing the said word, in the Western Cape, and if
so, whether such goodwill extended to Cavendish Square and/or Camps Bay;
1.4
Whether the use of the name NINO by Respondents at Cavendish Square would lead to confusion in the minds of the
public between the business of Applicant and that of the franchisees of First Respondent;
View Parallel Citation
1.5
Whether the use of the name NINO by Respondents at Cavendish Square would lead to the dilution of such goodwill
and reputation that Applicant may have in the name of NINO;
1.6
Any other issue on which this Honourable Court may, before or at the hearing, direct that oral evidence be heard."
Page 536 of [1998] 3 All SA 527 (C)
It was further ordered by agreement that pendente lite Nino's Cavendish Square could commence trading under the
name Nino's Italian Coffee and Sandwich Bar, the applicant would be entitled to conduct Nino Camps Bay and
neither party would be permitted to open any other store bearing or using as its name or part thereof the word
"Nino" within a fortykilometre radius of the General Post Office, Cape Town.
The hearing of oral evidence
[13] At the hearing of oral evidence the applicant amended the relief sought by it in the first application. In its
amended form it sought a final interdict in the following terms:
"1.
2.
First respondent is interdicted and restrained from, using, or permitting any of its franchisees to use, the name 'Nino'
whether by itself or in a combination of other words, as a trading name in relation to a restaurant, coffee shop or
similar business situate at or near
1.1
Cavendish Square, Cape Town;
1.2
Oswald Pirow Drive, Foreshore, Cape Town.
Second respondent is interdicted and restrained from using the name 'Nino' or any derivative thereof as a trading
name in relation to a restaurant, coffee shop or similar business situate at or near Oswald Pirow Drive, Foreshore,
Cape Town."
The first respondent sought confirmation of the rule nisi issued in the second application.
[14] The parties were in agreement that the first aspect referred to in paragraph 1.1 of the order of Farlam J was
not in fact in issue. It is common cause that the applicant conducted the business of Nino Greenmarket Square prior
to the registration of the first respondent's trade mark. The parties were also agreed that oral evidence could be
led in relation to whether the effect of the order of Van Deventer J was to compromise the first application against
the second respondent, and if so, whether the second respondent withdrew and/or waived her right to rely on such
compromise. As it transpired no evidence was led in this regard and this aspect is, if necessary, to be determined
on the papers. The first respondent also placed on record that it would not be persisting with the contention
advanced in its opposing affidavits in the first application, that the court lacked jurisdiction to hear that application.
[15] During the course of the hearing the respondents made certain admissions which it is convenient to note here.
They admitted that it is common cause that members of the public confuse the name of the applicant with the
names of the first and second respondents. They also admitted that such confusion causes such members of the
public to form
View Parallel Citation
the impression that the business of the applicant and the businesses of the first and second respondents are in