the single socket article where the position of the switch is closer to the earth socket hole. There is an
additional feature in the single socket design and that is the presence of what appears to be a small hole
above the switch. This may be for an indicator light but, in any event, the respondents do not have it. Noone
has suggested that its absence makes a substantial difference and I do not think that anyone could have
done so seriously.
[25] My evaluation of the prior art shows that the level of novelty of this design is not such that small differences
are material. There is against this background another way of determining whether there was infringement
and that is to ask whether, if the respondents' article had been part of the prior art, the design would have
been new. The answer must be "no"
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because the move of the position of the switches and the removal of the steps on the narrow sides of the
surrounds would have been regarded as trade variants. What anticipates if earlier, in general terms, infringes
if later, the converse of the general rule mentioned earlier. It follows that the differences, which are per se
insubstantial, do not save the respondents from infringing.
[26] The appeal is upheld with costs and the order of the court below replaced with an order
1.
interdicting the respondents from infringing registered design A96/0687 by making, importing, using, or
disposing of the Lear G2000 series single electrical socket SYZ 16 (100 x 100) and double electrical
socket S2YZ2 16 (100 x 100);
2.
directing the respondents to surrender all infringing articles in their possession to the applicants;
3.
directing that an enquiry be held for the purposes of determining the amount of any damages suffered
by the applicants or for the determination of a reasonable royalty as contemplated in section 35(3)(d) of
the Designs Act 195 of 1993, and ordering payment of such damages found to have been suffered or of
such reasonable royalty;
4.
directing, in the event of the parties being unable to reach agreement as to the future pleadings to be
filed, discovery, inspection or other matters of procedure relating to the enquiry, that any party is
authorised to apply for directions in regard thereto;
5.
directing the respondents to pay the applicants' costs.
Page 1092 of [2007] 4 All SA 1082 (SCA)
(Streicher, Cloete, Lewis and Cachalia JJA concurred in the judgment of Harms ADP.)
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For the appellant:
B Du Plessis instructed by Spoor & Fisher, Pretoria
For the respondent:
MM Jansen SC instructed by instructed by Adams & Adams, Johannesburg