Cases referred to in judgment
Aktiebolaget Hässle and another v Triomed (Pty) Ltd [2002] 4 All SA 138
(2003 (1) SA 155) (SCA)
211
Cointreau et Cie SA v Pagan International 1991 (4) SA 706 (A)
210
EnsignBickford (SA) (Pty) Ltd and others v AECI Explosives and Chemicals
Ltd 1999 (1) SA 70 (SCA)
210
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)
210
Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd and
another 1984 (3) SA 681 (A)
217
Johnson and Johnson (Pty) Ltd v KimberlyClark Corporation and Kimberly
Clark of SA (Pty) Ltd 1985 BP 126 (A)
211
Letraset Limited v Helios Limited 1972 (3) SA 245 (A)
211
Roman Roller CC and another v Speedmark Holdings (Pty) Ltd
1996 (1) SA 405 (A)
210
Stauffer Chemical Co and another v Safsan Marketing and Distribution Co
1987 (2) SA 331 (A)
211
Swisstool Manufacturing Co v Omega Plastics 1975 (4) SA 379 (W)
214
Weltevrede Nursery v Keith Kirsten's (Pty) Ltd and another [2004] 1 All SA
181 (2004 (4) SA 110) (SCA)
210
Judgment
SOUTHWOOD J
[1] The plaintiff in these cases is Sunsmart Products (Pty) Ltd a company which manufactures and distributes
flying (or teardrop) banners. The defendant
Page 208 of [2006] 3 All SA 206 (T)
in these cases is Flag and Flagpole Industries (Pty) Ltd a company which manufactures and sells flying
banners. Under case number 97/10535 the plaintiff claims a final interdict and ancillary relief on the grounds
of the defendant's infringement of patent 97/10535. Under case number 99/3281 the plaintiff claims a final
interdict and ancillary relief on the grounds of the defendant's infringement of patent 99/3281. The plaintiff
instituted both actions in the Court of the Commissioner of Patents and both actions were enrolled for
hearing in that Court. Under case number 7385/2004 the plaintiff claims a final interdict and ancillary relief on
the grounds of the defendant's infringement of design registration A97/1155. The plaintiff instituted the
action in the High Court and it was enrolled for hearing in the High Court. The parties agreed, for reasons of
convenience, that the three actions be heard together. They also agreed that the actions would proceed
against the company only and that the actions against Michael Clingman, the second defendant, would be
withdrawn. At the pretrial conference the parties settled the action under case number 99/3281 and the
defendant agreed to an order being granted against it. All that needs to be done under case number
99/3281 is make the order agreed.
[2] The plaintiff is the proprietor in terms of the Patents Act 57 of 1978 of patent 97/10535 which relates to a
flag construction. This is described in the body of the specification as follows:
"According to the invention, a flag construction comprises a pole which includes, at least in the top end thereof, a
flexible section, which is adapted to be bent into a substantially Ushaped section and being adapted to engage at
least a portion of the upper periphery of a piece of material and to maintain it under tension at least in the area
defined by the pole, the Ushaped section and a line between a point towards the tip of the flexible section and a
point along the length of the pole."
Claim 1 of the patent is for all practical purposes identical to this description. The embodiment of the
invention is described, with reference to a drawing, as a piece of cloth in the shape of an inverted teardrop
with a seam running along one side and over the curved upper edge of the teardrop and a fibre glass pole
tapering almost to a point at its top end, rendering it flexible. This teardrop flag is attached to the fibre
glass pole in such a way that the resilience of the fibre glass pole maintains the cloth under tension.
[3] The plaintiff is also the proprietor in terms of the Designs Act 195 of 1993 of an aesthetic design ("the
design"). The design, which is in the shape of an inverted teardrop, is registered in class 20 ("Sales and
advertising equipment, signs") and is to be applied to flags. According to the definitive statement
"The novelty of the design as applied to a flag, banner or the like lies in the shape and/or configuration thereof,
substantially as shown in the accompanying drawing."
Further clarification is provided by the explanatory statement which states
"A flag or banner is shaped substantially like an inverted teardrop 10 and is adapted to be engaged by a flexible
pole 12."