art in general, his design of the Sovereign range of boats was original. It was not simply a copy of the Falcon
or of any other make of boat. There were obvious and substantial differences between them. The Sovereign
was, indeed, an improvement on the Falcon.
[78] As appears from the authorities cited above (paragraph 69 and 70), even if the respondents had copied the
Falcon boats in detail, this would still not constitute unlawful competition. Only if it could be said that the
respondents were attempting to pass off their Sovereign range of boats as those of
Page 403 of [2005] 2 All SA 382 (C)
the applicants' Falcons, could it be said that there was any question of unlawfulness or, more correctly,
wrongfulness. In this regard I have studied the various photographs and other documentation appended to
the papers carefully. I am quite satisfied that a reasonably cautious and discerning purchaser, who has at
least some knowledge of the luxury item he is proposing to purchase, would not be misled by the design,
shape, form or getup of the Sovereign into thinking that he was purchasing a Falcon. The name of the boat is
one of the most prominently distinctive features of both the Falcon and the Sovereign. There is not the
slightest similarity between such names, which occur in radically different form and style of lettering. The only
member of the public who might be misled would be one who had no idea what the name was of the boat in
which he was interested and was simply buying blindly on the basis of external appearance or vague
recollection only.
Conclusion
[79] It follows from the above that I have not been persuaded that the respondents have been passing off their
Sovereign range of rigid inflatable boats as the Falcon boats produced by the second applicant. There is, in my
view, no danger that a potential purchaser would be confused or misled by the similarity in appearance, form
and design of the respective boats. There is hence no question of wrongful, unlawful or unfair competition
justifying any relief, be it in the form of a permanent or temporary interdict. At no stage can it be said that the
respondents acted unconscionably or in conflict with public policy. There was nothing unjust, unfair or
unreasonable in their conduct. The facts in this case hence differ totally from those in Schultz v Butt.
[80] In the event the application is dismissed with costs, including the costs reserved on 14 October 2003.
For the applicant:
DJ van Sittert instructed by Willem Stapelberg
For the respondent:
AR SholtoDouglas instructed by Buchanan Boyes
Footnotes
1 Also reported at [1997] 1 All SA 134 (A) Ed.