applicant's Falcon range of boats. So similar were they that a potential purchaser would be confused as to the
source of the respective boats. This constituted unfair competition justifying relief as set forth in the notice of
motion.
[49] It would appear from Mr Van Sittert's argument that the allegations of passingoff have been presented, quite
correctly, as a form of unfair competition rather than as a wrongful act or delict in its own right. He described it
as a form of misrepresentation relating to the competitor's performance and an "indirect interference" in his
goodwill.
[50] Mr Van Sittert referred extensively to authorities on wrongful or unfair competition which he defined as the
wrongful interference with a competitor's goodwill or his right to a distinctive getup of the product creating or
enhancing such goodwill. The relevant norm for determining whether or not there has been any such
interference has been variously described by our courts as "fairness and honesty in competition" or simply
"public policy" (boni mores). This is the community's sense of justice, fairness, reasonableness and good
morals (morality and ethics) in commercial dealings. I shall return to it below in the discussion of the relevant
legal principles.
Page 396 of [2005] 2 All SA 382 (C)
[51] In the argument for the applicants much turned upon the distinctive marks and characteristics constituting the
getup of the product in question. If it should be established that the getup used on the respondent's
competing item is calculated or is likely to mislead or confuse potential purchasers, a court may be persuaded
to hold that there has been a wrongful interference in the applicant's goodwill. The potential purchaser in
such a case would be the ordinary purchaser who knows more or less what he is looking for.
[52] In the present case, Mr Van Sittert submitted, the appearance of the Falcon and Sovereign boats was so
similar that an ordinary purchaser would of necessity be confused or misled into believing that the Sovereign
was in fact a Falcon. The applicants stood to be severely prejudiced should the respondents be permitted to
continue with their wrongful conduct. They were hence entitled, at least, to an interim interdict pending the
institution of an action for damages suffered by them as a result of the applicants' wrongful competition.
Submissions for the respondents
[53] Mr SholtoDouglas, for the respondents, quite correctly pointed out at the outset that only the second
applicant and first respondent were in competition with each other. There was no need to have joined the
first applicant or the second and third respondents for purposes of the relief sought. In any event much of the
relief sought was incompetent in law in that the court has no power to order seizure and removal of goods for
destruction (see Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and another 1984 (4) SA 149 (T) at
173G174A). The remaining relief, he submitted, was largely repetitive, if not vexatious. No special order as to
the costs of the application was sought, however, and it is unnecessary to give further consideration to these
objections.
[54] With reference to the principles set forth in PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) at 634E635C, Mr SholtoDouglas dealt with the disputed and undisputed allegations
appearing from the various affidavits, more particularly that of Du Toit. He submitted that, although the boats
were similar, they were not identical and the Sovereign range of boats were not copies of the Falcon range.
Much of the similarity was, in any event, dictated by functionality, the existing state of the art and the
availability of materials required for the construction of rigid inflatable boats. This had the effect that there
was a good deal of uniformity in design, form and appearance of such boats in general. The most strikingly
distinctive aspect of each boat was in fact its name, namely, in the present case, "Sovereign" as opposed to
"Falcon". The moment a potential purchaser saw the name "Sovereign" he would know that it was not a
"Falcon".
[55] Mr SholtoDouglas refuted the suggestion that the respondents had copied the applicants' designs. The design
and every aspect of the construction of such boats were within the public domain and the applicants had no
protection in this regard. There was no question of unlawful competition in that the applicants had not proved
that the first respondent had interfered with the second applicant's goodwill. Merely competing with one
another in the market place could never be regarded as unfair or wrongful
Page 397 of [2005] 2 All SA 382 (C)
competition, even if one competitor had copied another's unregistered (and hence unprotected) design or
getup. Only if such copying indeed constituted interference with the competitor's goodwill, in the sense that it
was unfair or offended against public policy, might it amount to unlawful competition.
[56] If reliance should be placed on passingoff as a form of unlawful competition, Mr SholtoDouglas argued, the
applicant for an interdict should prove that the merchandise of the one is being misrepresented as, or
associated with, that of the other. The misrepresentation or association must be such that there is a
reasonable likelihood that members of the public may be confused into believing that the business of the one
is, or is connected with, that of the other. In addition this likelihood of confusion must cause damage to the
goodwill or reputation of the other. In the present matter, Mr SholtoDouglas submitted, the only reputation
that the applicants have succeeded in establishing is in the name of its boats, namely "Falcon". An ordinary
purchaser who sees this name will not be confused or deceived into thinking that a boat with the name
"Sovereign" is the same as, or is associated with, the second applicant's "Falcon". In the event the applicants
have not, Mr SholtoDouglas submitted, suffered any injury as a result of any alleged unlawful competition or
passing off attributable to the first respondent.