those disputes in this application. Whatever doubt there may be with regard to the effect on the applicant's rights
of the use by Jarvis of the spider device, the applicant has, nevertheless, made out a prima facie case of passing off.
To the extent that the question of the balance of convenience may be a relevant factor of this application, I am of
the opinion that it favours the applicant. Clearly the applicant will suffer ongoing damages if members of the surfing
public purchase the respondents' surfboards, believing that they are the applicant's boards, because of the spider
device. On the other hand, there is nothing to prevent the respondents, pendente lite, from continuing to
manufacture, sell and deal in surfboards, bearing the name "Jarvis". If that name has the reputation which the
respondents' claim it has, then there is no reason to believe that they will suffer any or significant damage if they
are not also able to use the spider device.
Order
It follows from my conclusion that the applicant has made out a prima facie case for an interdict and that it is entitled
to an order in terms of paragraph (a) of the order prayed. I am, however, of the view that the type of action to be
instituted by the applicant should be specified.
No authority was cited as justification for the granting of the relief sought in paragraph (b). The question of the
granting of that relief was hardly touched upon in argument. In my view it will be sufficient at this stage to grant an
interim interdict and the disclosure of the information contemplated by the relief sought in paragraph (b) can be
dealt with in the proposed action, either by way of discovery or by way of a further order should that be necessary
and competent.
Both sides sought an order for costs on the attorney and client scale, if they were successful. Although the
applicant has succeeded in obtaining interim relief, I do not consider that there is any justification, at this stage, for
awarding costs on the attorney and client scale. It is possible that the respondents bona fide believed that they
were legally entitled to use the spider device. I accordingly make the following order:
1.
Pending the determination of an action to be instituted by the applicant against Heavywater CC and the second and
third respondents for an appropriate interdict restraining them from using the representation of a spider on surfboards
manufactured, sold or dealt in by them, and other appropriate relief, such action to be instituted within 21 days of this
order:
(a)
Heavywater CC and the second and third respondents are interdicted and restrained from manufacturing,
selling or dealing in any surfboards on which appears:
Page 329 of [1996] 4 All SA 316 (D)
2.
(i)
the logo incorporating a representation of a spider and the separate representation of a spider, as they
appear on the photograph of a surfboard, a copy of which is annexed to this order, marked "X".
(ii)
any visual illustration or representation whatsoever of a spider;
(iii)
generally, any mark which infringes the applicant's trade mark in the word "SPIDER" registered under
trade mark No. 88/5365.
Heavywater CC and the second and third respondents are ordered, jointly and severally, the one paying the others to
be absolved, to pay the applicant's cost of this application.
For the applicant:
GD Harpur instructed by Taylor & Findlay, Durban
For the respondents:
RJ Salmon instructed by Woodhead Bigby & Irving, Durban