respondent imitates the representation or depiction of the mark, it cannot be heard to say that its use is bona fide.
The evidence established that other substantial companies had not found it necessary to use the mark and this
leads to the conclusion that the respondent's use was a device to take advantage of appellant's goodwill. That, in
my view, disposes of the argument based on section 46.
View Parallel Citation
In the result the main appeal must be upheld both in relation to infringement and in relation to the order directing a
disclaimer. So too the crossappeal must be dismissed.
The order which I make is:
1) The appeal is upheld and the crossappeal dismissed.
Page 340 of [1997] 1 All SA 327 (A)
2) The Court a quo's order is set aside and there is substituted therefor the following:
"a)
The respondent is interdicted from infringing applicant's registered trade mark 84/6404.
b)
The respondent's counterapplication for expungement of the mark and for the entry of a disclaimer in relation
thereto is dismissed.
c)
The respondent is ordered to pay the costs of the application and counterapplication including the costs of two
counsel."
3) The respondent is ordered to pay the costs of the appeal including the costs of two counsel.
(Corbett CJ, Nestadt, Harms and Schutz JJA concurred in the judgment of Plewman JA.)
For the appellant:
CE Puckrin SC and O Salmon instructed by John & Kernick, Pretoria, and Honey & Vennote Ingelyf, Bloemfontein
For the respondent:
LG Bowman SC and ABS Franklin instructed by DM Kisch Incorporated, Pretoria, and Naudes, Bloemfontein