the respondent can be cured by the opportunity (which it now has) of amplifying its answering affidavits and it
seems pointless, when the proceedings have already reached this advanced stage, to require that they should be
commenced de novo.
The main argument before me centred around the question of whether the applicant was entitled to any interim
relief pending the final determination of the application. During the course of argument, counsel for the respondent
indicated that the respondent would be prepared to agree to an interim order interdicting it from using the patterns
to which the applicant laid claim, subject to certain limitations in the form of the order, as it had no intention of using
them. It was made clear that this concession was tendered without any admission that the respondent's conduct or
contemplated conduct was unlawful in any way. It was accordingly only necessary for me to decide whether interim
relief should be granted in respect of the use of the lasts.
The question of whether I should grant the interim relief sought depends firstly, on whether the applicant has
established the requisite clear right or a right which, if not clear, has been prima facie established though open to
some doubt. Secondly, even if such a right has been established, I must be satisfied that the balance of
convenience favours the grant of the relief sought before making an interim order.
Counsel for the applicant contended that it had established a right to prevent the respondent from using the
lasts on the basis that such use would constitute an unlawful exploitation by the respondent of the fruits of the
applicant's labour and ingenuity and as such amount to unlawful competition of the type dealt
Page 85 of [1999] 3 All SA 81 (N)
with in Schultz v Butt 1986 (3) SA 667 (A). The principles there enunciated are too wellknown to merit repetition.
What emerges clearly from the decision is that the copying of a rival's product, which does not enjoy any statutory
protection, does not per se amount to unlawful competition. Whether it will be stigmatised as such depends on a
number of factors including the initial investment of time, labour and money in the product, its originality and its
commercial success, the ease with which it was copied, the technical and commercial feasibility of product
differentiation, and the economic sense or nonsense of requiring investment in redesigning a satisfactory product
from scratch (see page 683AC). The conduct of the copier in obtaining the matter copied can also be taken into
account.
In the present case the applicant has, in my view, failed to establish that which was allegedly copied was the
product of any significant inventiveness or labour on its part. On the contrary, it appears to be a basic utilitarian
design in general use and without any unique features whatsoever. Bearing in mind the prevalence in the footwear
industry of copying the products of another (to which the applicant itself testifies) I think it most unlikely that any
court, applying the criterion of the boni mores in the industry in question, would come to the conclusion that the
respondent's conduct was so reprehensible that it should be stigmatised as unlawful competition.
Even if I am wrong in this conclusion, it seems to me that the balance of convenience militates against the grant
of the relief sought. In view of the fact that interim relief is being granted in respect of the shoe patterns to which
the applicant lays claim, the damage which it can anticipate suffering from the utilisation of the lasts to produce
shoes of a pattern differing from its products is unlikely to be serious. On the other hand, to prevent the
respondent from marketing shoes of a different design simply because that design has been built around lasts
copied from those of the applicant will necessitate its redesigning those models around other lasts and must
necessarily result in a substantial setback in its production plans. In the premises I do not think that the applicant is
entitled to any interim relief in respect of the lasts.
I accordingly make the following order:
1.
Pending the final determination of this application, the respondent is interdicted and restrained from utilising
applicant's patterns numbers 5933, 5233, 5902 and 5202 or any copy thereof in its manufacturing process.
2.
The application is adjourned sine die.
3.
The costs of today's hearing are reserved for decision by the court finally adjudicating upon the application.
For the applicant:
TR Gorven instructed by Austen Smith Incorporated, Pietermaritzburg
For the respondent:
G Morley instructed by Cajee Essa Ismail & Thejpal, Pietermaritzburg