purchasing public by association with the identifying 'getup' (whether it consists simply of a brand name or a trade
description, or the individual features of labelling or packaging) under which his particular goods or services are offered to
the public, such that the getup is recognised by the public as distinctive specifically of the plaintiff's goods or services."
(My underlining. See also Lord Jauncey at 417 lines 36.) The words underlined are pertinent and echo those of
Nicholas J that
"the plaintiff must prove that the feature of his product on which he relies has acquired a meaning or significance, so that it
indicates a single source for goods on which that feature is used."
(AdcockIngram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) 437AB.) Put differently, reputation is
dependent upon distinctiveness (cf. Van Heerden & Neethling p169.)
[22] The reputation relied upon must have been in existence at the time the defendant entered the market, in
other words, a plaintiff cannot rely upon a reputation that overtook the business of the defendant (AnheuserBusch
Inc v Budejovicky Budvar NP (trading as Budweiser Budvar Brewery) and others [1984] FSR 413 (CA) 462). It must also
exist when the misrepresentation is committed.
[23] There is a small group of people who are passionate about old and inconvenient cars and who are prepared
to buy a replica of a car designed in 1968 in which the designer himself had lost interest in 1970. Why the
View Parallel Citation
interest in the III? According to the witnesses, it all revolves around the classic shape of a relatively cheap car. It is
inexpensive because Lotus designed not much more than the chassis and body, relying on standard moving parts,
such as a Ford engine and a
Page 185 of [1998] 3 All SA 175 (A)
Triumph gearbox. The design is ideal for use as a kit car and relatively easy to reproduce. It is considered to be
special because Colin Chapman designed it "it had a pedigree from Colin Chapman" said one of the witnesses.
Chapman is famous because he designed a British car (not the Seven) which was able to compete successfully in
Grand Prix races against German and Italian competition. Here was an attractive sports car with a pedigree which
could be used on the road or on a track within the reach of the less affluent enthusiast.
[24] There has always been a potential, but small, local market for such a product among cognoscenti and it is only
fair to assume that they knew the following facts. Lotus made four cars of different shapes, each having Seven a s
part of its name. In 1972 it stopped production of the last car in the series, namely the IV. Under licence Caterham
took over the manufacture of IV's. Some time later it began to manufacture the III. It was available for export to
South Africa. Lotus never produced another Seven. A number of replicas were being produced locally and around
the world, including those by Birkin since 1983. Many were privately built. As early as 1984 the manufacture of
replicas, in the words of Nearn of Caterham, had almost become a national pastime in South Africa. Lotus had a
business presence in South Africa by virtue of its agency agreement (what it entailed we do not know) with Status
Cars and the local Lotus Motors, and they distributed Birkin's replica. Caterham had hardly any market presence in
South Africa. (In fact, only four cars were exported to South Africa during the early 1980's and none since.) Lotus
badges are affixed to replicas by the owners as a matter of course. Local Lotus enthusiasts formed a club called The
Lotus Register. Its object is to promote an interest in "Lotus" cars, not only those manufactured by Lotus but also
"acceptable replicas". They keep a record of these cars and know of 71 Series III cars in South Africa: two are
genuine Lotus's, there is one Caterham, there are 41 Birkins and the rest homebuilt.
[25] These facts are fatal to Caterham's now abandoned claim based upon the distinctiveness of the shape and
configuration of the III. Lotus had lost interest in the Seven. It knew all along that replicas were being built around
the world, but provided the name Lotus was not appropriated, it had no objection. It knew of the Birkin since its
launch in 1983 and, in the words of its secretary, acquiesced in its production and refrained from taking any action.
Through the inaction of Lotus, which sat by while others copied its onetime car, the distinctiveness of the car was
first diluted and then destroyed. The shape of the III no longer gave any indication of its provenance.
[26] The appellant argued, however, that the use of the name Seven, which it was said is a commonlaw trade
mark, made all the difference. The reasoning was more or less this. Lotus was, because of use, the original owner
of the reputation in a car with the shape of the III and carrying the name Seven. Lotus licensed Caterham to
manufacture the
View Parallel Citation
III and to use the trade mark Seven. Caterham utilised its rights under the licence agreement. During the years
1973 to 1988 it proceeded to build on Lotus's reputation and to expand it. Because it acted as licensee everything
Caterham did enured to the benefit of Lotus. During 1988 Lotus assigned its goodwill to Caterham and the goodwill
and reputation in the shape plus trade mark thereafter vested in Caterham. A Lotus replica with the name Seven
used in relation to it therefore exclusively identifies it as a product licensed by Lotus or made by its successor in
title, Caterham.
Page 186 of [1998] 3 All SA 175 (A)
[27] There are many reasons why this new argument cannot be upheld. Partly it flies in the face of the pleadings
and although many of the contrary allegations in the particulars of claim may have been unnecessary, they
funnelled attention in a different direction. It is not then permissible to argue another case on appeal (cf. Imprefed