'that where a court has come to a decision on the merits of a question in issue, that question, at any rate as a causa
petendi of the same thing between the same parties, cannot be resuscitated in subsequent proceedings."
In my judgment there is no merit in the defence of res judicata or the "once and for all" rule. Quite apart from the
fact that the parties in this application are not the same as the parties in the first application, the cause of action in
this application and the relief claimed are different from the cause of action relied upon and the relief claimed in the
first application. It is true that in the first application the applicant referred to the use by it of a logo, originally with
a spider web design and subsequently incorporating a spider and also referred to the use by the respondents in
that application of the logo "SPYDERBILT" used in conjunction with the stylised likeness of a spider, and referred, in
relation to its cause of action based on passing off, to the similarity between the applicant's getup and the first
respondent's mark. However, those allegations were merely used in support of the applicant's contention, in the
first application, that the use of the word "SPYDERBILT" constituted an infringement of its trade mark or a passing
off, and that was what the Court was called upon to decide. The relief claimed, and granted, was to prevent the
respondents from using the word "SPYDERBILT" and made no mention of the depiction of a spider. It is also true
that the applicant might, in the first application, have attempted, also, to prevent the use by the respondents in
that application of a logo depicting a spider, but it did not, and confined its cause of action to the use of the word
"SPYDERBILT". The Court was not, therefore, called upon to consider whether the use of a spider, either in
conjunction with the word "SPYDERBILT" or alone, in itself constituted an infringement of the applicant's trade mark
or a passing off. There is no reason to disbelieve the applicant's contention in this application that it did not
anticipate that the respondents would create a new logo replacing the name "SPYDERBILT" with a representation of
a spider, or that it would use that representation without the word "SPYDERBILT". Although the aforementioned
picture in Zigzag magazine was referred to in the applicant's attorney's letter on the very day on which the order
was made final in the first application, that picture did not form part of the material in the first application and the
Court was not called upon to decide whether the new logo device constituted an infringement of the applicant's
rights. The applicant's complaint in this application is, in effect, that the respondents have abandoned the use of
the word "SPYDERBILT", which was the subject of the first application, and have replaced it with a pictorial
representation of a spider in one form or another, and that this infringes its trade mark in the use of the word
"SPIDER" or constitutes a passing off. That is a new cause of action.
The defence of res judicata or the "once and for all" rule therefore fails.
Acquiescence/waiver/estoppel
For a defence of acquiescence to succeed, it must be shown that the person against whom the defence is raised,
has lain by with full knowledge of his rights and of the infringement of those rights.
See Policansky Bros v Hermann and Canard 1910 TPD 1265 at 1278.
Burnkloof Caterers v Horseshoe Caterers Ltd 1974 (2) SA 125 (C) at 136H137F.
It is a form of tacit consent.
Whilst it is clear that the applicant did know that the respondents had been using a spider device before and at
the time of the bringing of the first application
Page 324 of [1996] 4 All SA 316 (D)
and it did not prevent the respondents from using that device in the first application, it has not been proved by the
respondents, in this application, that the applicants knew, at the time of the first application, that the respondents
would, in effect, replace the word "SPYDERBILT" in the oval on its logo by the pictorial representation of a spider or
spiders in order, on the applicant's case, to achieve the same purpose. It appears that as soon as the applicant
became aware of the respondents' intention, it caused its attorneys to write the letter of 30 April 1996 and, when it
did not achieve satisfaction, followed it up with this application. It cannot, in my view, be said that the applicant has
stood by with full knowledge of the respondents infringement of its rights or that it has tacitly consented to the use
of the spider device. The defence of acquiescence or waiver therefore fails.
For a defence of estoppel to succeed the party raising it must establish a representation by the application which
has induced him to act to his prejudice.
See the Burnkloof Caterers Ltd case (supra) at 136AB.
In the answering affidavit the second respondent says that he relied on the applicant's conduct in raising but not
seeking relief in relation to any logo in the first applicant, and continued to use "Jarvis'spider mascot". He says he
even sought legal advice at the time of the first application and was advised that he could still use the Jarvis spider
mascot because if the applicant had objected to it, it would have done so in the first application. The applicant, in
reply, merely denies these allegations.
In my opinion the fact that the applicant did not seek relief in relation to the spider device in the first application
could not be construed as a representation to the respondents that it had no objection to the respondents use of
that device, and certainly not as a representation that it had no objection to such use, whatever form the use may
take. Furthermore, I doubt very much that the respondents' continued use of the spider mascot was induced by a
belief that the applicant had no objection to that use. The respondents' case is that they used the device before
the application was brought, that they continued to use it thereafter and that they have a right to use it. It would
appear, therefore, that what induced them to continue using the device was not any representation on the part of
the applicant, but their belief that they had the right to do so.