King Consolidated Food Services (Pty) Ltd v Olympic Flame (Pty) Ltd (1100/2004) [2005] ZAFSHC 25 (17 February 2005)

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[2005] ZAFSHC 25
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King Consolidated Food Services (Pty) Ltd v Olympic Flame (Pty) Ltd (1100/2004) [2005] ZAFSHC 25 (17 February 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 1100/2004
In
the matter between:
KING
CONCOLIDATED FOOD
APPLICANT
SERVICES
(PTY) LTD
and
OLYMPIC
FLAME (PTY) LTD
RESPONDENT
CORAM:
VAN
COPPENHAGEN J
HEARD ON:
10
FEBRUARY 2005
JUDGMENT:
VAN
COPPENHAGEN J
DELIVERED ON:
17
FEBRUARY 2005
[1] In his founding
affidavit the applicant alleges:
“
38. As at the date of issue of this
application, the Respondents continue to use and commercially exploit
the Applicant’s trademarks
and intellectual property, in the
following manner:
38.1 The Respondent continues to
display the ‘Keg’ signage outside the premises atop a ‘pole
signboard’.
38.2 The
Respondent continues to display the ‘Keg Pub & Restaurant’
signage within the premises.
38.3 The
Respondent continues to display the ‘Keg’ pillar boards within
the premises.
38.4 The
Respondent continues to display the sand blasted ‘Keg’ signage on
glass panels within the premises.
38.5 The
Respondent continues to display the ‘Keg’ wall mounted specials
chalk boards within the premises.
38.6 The Respondent continues to make
use of the ‘Keg’ menu’s and cocktail menu’s.
38.7 The Respondent continues to make
use of the ‘Keg’ operational manuals, training manuals, menu
manuals, maintenance manuals
and recipe manuals.
38.8 The
Respondent continues to display the words ‘Keg’ on the waitrons
name badges.
38.9 The Respondent continues to
display the words ‘Keg’ on till slips and computer generated
printed documents.
38.10 The
Respondent continues to display ‘Drink your way around the world’
signage and logo’s, ‘Cocktail Cruise’ signage
and logo’s.”
Applicant applies for an
injunction against the respondents to desist in acting as set out
above.
[2] Respondents deny the
allegations that as at date of the issue of the application that they
were in any way and in any manner conducting
itself as set out in the
founding affidavit and give a full explanation in reply to
applicant’s founding affidavit.
[3] I need say no more
but that on the allegations contained in the founding affidavit read
with the allegation contained in the opposing
affidavit, various
actual disputes present themselves negating any order in favour of
the applicant. (
ADMINISTRATOR,
TRANSVAAL, AND OTHERS v THELETSANE AND OTHERS
[1990] ZASCA 156
;
1991
(2) SA 192
(A) at 197)
Appreciating the
difficulties confronted with, applicant’s counsel suggested in the
alternative that the matter be referred to
evidence or alternatively
for trial.
[4] The main argument,
however, on behalf of applicant, suggests that respondent on his own
version acknowledges, that the trademark
registered in the name of
the applicant, is being exploited by the respondents in that signage
used by respondents except for the
inscriptions thereon, so closely
resembles the signage by or registered in the name of the applicant,
that the actions by respondent
can be described as “passing off”.
The main argument on
behalf of the applicant is not substantiated by the application and
respondent was not required to react or reply
to allegations or
averments relating to a passing off. Applicant cannot in argument
rely or suggest conduct infringing on a trademark
or registered
trademarks if in its application or founding affidavit the respondent
was not alerted to the fact that such an argument
should or could be
expected. See
THELETSANE’S
case
supra.
[5] In a so-called
supplementary affidavit one Nitsche explains that he on the 28
th
November 2004 visited the premises of the applicant and that he found
with regards to applicant’s trademark a mark “Drink your
way
around the world” to be displayed on a board inside the restaurant
and a sign outside the restaurant about 50 meters away which
reflects
the “Keg” logo and the name “Keg and Mustang”.
Respondent fully
explains the presence of the mark “Drink your way around the world”
displayed inside the restaurant and the
sign outside the restaurant
displaying the name “Keg and Mustang”.
What is of importance,
however, is that Nitsche although he inspected the business could
find no evidence of any infringements of
the trademark other than the
alleged above by the respondents at the date of the inspection on 28
November 2004.
An order on the terms as
applied for by the applicant will therefore be a futile exercise.
[6] In approaching the
court applicant was aware or should have been aware that the
allegations contained in its founding affidavit
would be hotly
disputed, but nevertheless, elected to use applications for
proceedings, in stead of proceeding by way of action.
It must suffer
the consequences of its indiscretion.
No reason suggests
itself why the successful party should not be entitled to its costs.
The
following order must follow:
1. The application is
dismissed with costs including the costs of 18 October 2004.
_______________________
G. VAN COPPENHAGEN, J
On
behalf of applicant: Adv. Nigel Redman
Instructed
by:
Naudes
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. N. Snellenburg
Instructed
by:
Goodrick
& Franklin
BLOEMFONTEIN
/sp