TUT 4

Anton pillar
1.

An Anton Piller order is an order in terms of which an aggrieved

competitor's legal representative is authorised to enter the premises of
the infringer
2.
with the sheriff
3. and to seize evidence relating to the infringement of his "werfkrag"
4. for protection and storage
5. The order is obtained ex parte in the chambers of the judge
6. without notice to the infringer
7. The requirements for an Anton Piller order are:
8. A pending cause of action with which the applicant wishes to proceed
The respondent has specific and specified material in his possession
which is essential to the applicant's
9. The applicant has no real or personal right to claim the material from
the respondent
10. There is good cause and reason to believe that the evidence will be
concealed or destroyed before the date of discovery or the trial of the
case

Ambush marketing

Ambush marketing in sport is defined :

marketing enabling a business enterprise

to insinuate a relationship
between specific goods or services and a sports event
without the marketer actually making any financial contribution to the sports
event, whether by sponsorship or any other method
Section 15A of the Merchandise Marks Act regulates ambush marketing in South
Africa
in terms of which the Minister of Trade and Industry may designate an event as a
protected event for the purposes of protection against ambush marketing

test

Test:
draw the line between lawful parallel marketing and unlawful
ambush marketing.
HOW?
Take advert out of context of the sports event
consider it against the backdrop of a normal, everyday life

RESULT:
If the message in the advert STILL as meaningful parallel
marketing
If the message is senseless :
a) is a clear infringement on the goodwill of the sports event
b)

can be categorised as ambush marketing

IE is the advert of such a nature that it is to be expected in the

everyday, ordinary course of business?

Ambush Marketing

Ambush Marketing

Ambush Marketing

NOT Ambush Marketing

NOT Ambush Marketing

How to answer ambush marketing

Q:
1. Define ambush marketing
2. Regulated by Section 15 A merchandise marks act
3. Difference BTW ambush marketing (unlawful) AND parallel marketing
(lawful)
4. Test to determine if parallel marketing
5. Identify the picture
6. Apply the test
7. Conclude ambush marketing or not
EG of application:
. The reference to "unofficial carrier of the you know what", together with
soccer balls, vuvzelas, football players and the football stadium clearly
refer to the Football World Cup
. Would not make sence in ordinary everyday life
. so that the advertisement amounts to ambush marketing

Atlas organic Fertilizers

FACTS:
A sold guano based fertilisers
Called Ghwamis
R called his fertiliser Ghwanomix but employees called it Ghwamix
Unlawful infringement of trade mark
HELD:
Test for Unlawfulness
objective test boni mores
interests of the competing parties have to be weighed, bearing in mind
also the interests of society
this norm cannot exist in vacuo, the morals of the market place, the
business ethics of that section of the community where the norm is to
be applied
Unlawful competition is based on aqillian action

FACTS:

Spur ranches

spur alleged that they had used a particular layout and dcor in their
restaurants for more than three decades. Nineteen key features
were identified eg totem poles.
question - what is the distinctive design and layout which Spur
claims as its own? Not in founding statements.
HELD:
There is certainly a claim that it exists
court to decide: whether the claimed unique trade dress exists AND
what it comprises of was there similarity with saddles
geometry, texture, detail and colour part of Spurs claimed unique
trade dress.
not found in all Spur restaurants
It then concluded that the uniqueness claimed was not proved.
The court also mentioned that as a matter of practicality, it would
have been difficult to make an order prohibiting the use of features
substantially similar to Spur Steak Ranches

University of PTA

1. Doctrine of subjective rights was accepted to form part of South

Africa law
2. Under this doctrine a legal subject holds a subjective right over a
legal object.

fichardt
FACTS:
In May, 1915, sinking German submarine, rioting took place in Bloemfontein,
premises believed to belong to German owners attacked by the mob.
14th May, in the issue of the Friend headline:
Bloemfontein Riots.
German business places attacked.
Fichardts and Dalldorfs the chief sufferers.
Fichardt carrying on business at Bloemfontein -recover damages for
defamation
imputation that the plaintiff company was a German place of business
effect of hatred and contempt and injuring it in its business.
The evidence showed words used by the defendant inadvertently and
without intention to injure
HELD:
o assuming that the headlines implied that the plaintiff company was a German
place of business, that such a statement (without any special innuendo) was
not defamatory, and that plaintiff was, therefore, not entitled to succeed.

African National Congress v Congress of the People

and Others
FACTS:
members of ANC resigned from the party and formed a new party.
sought registration of the name chosen for the new party.

urgent application, the applicant sought to prevent the first defendant from
using the name chosen.

Held
objection to the use of the name in question arose from its history,
name would amount to unlawful competition.
The court disagreed with the submission that the first respondent's use of the
name would lead to people forgetting the applicant's history.
Moreover, the court pointed out that the application had to be decided on the
facts as they stood at present, and not on what might happen in future.
unlawful competition - without merit.
Cornelius piggy backing Should have been passing off

Caxton v reeva
A trading corporation has a right to sue for damages in respect of
a defamatory statement which is calculated to injure its business
reputation.
Such corporation may also claim damages to compensate it for
any actual loss sustained by it by reason of the defamation.
extent the defamatory statement is calculated to injure reputation
has to be decided ITO:
nature of the defamation,
character of the business it conducts and the likely impact
thereon of the defamation
damages must be assessed in accordance with the principles
relating to claims for defamation
bearing in mind that a corporation has 'no feelings to outrage
or offend'.

Brian boswell
person may use his own for his business
limitations upon the right of a person to trade under his own name.
1. If he has contracted not to do so.
2. If the business is started for the fraudulent purpose of imitating another's
goods
3. imitating the get-up of the latter's goods... or by imitating his labels etc, so as
to deceive...
4. name has become distinctive both of his goods and of himself as the
manufacturer of those goods and universally known in the market by his
name then his name is said to have obtained a secondary meaning
5. must not carry on his business in such a way as to lead those who deal with
him in that business to believe that they are buying goods of the earlier
manufacturer of the same name
where there is a likelihood of deception or confusion between the businesses using
the same family name subsequent trader need to reasonable steps to obviate
deception and/or confusion
The subsequent trader cannot use the family name unless he makes it perfectly
clear to the public doing business with him that his business is not that of the
earlier trader and is not connected with the earlier trader's business