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2024
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[2024] ZAGPPHC 878
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Designer Water (Pty) Ltd v Alkamax Beverages (Pty) Ltd and Others (59246/21) [2024] ZAGPPHC 878 (9 September 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA.
Case
Number: 59246/21
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE:
9 September 2024
SIGNATURE
In
the matter between:
DESIGNER
WATER (PTY) LTD
Applicant
(Registration
Number: 2013/007954/07)
and
ALKAMAX
BEVERAGES (PTY) LTD
(Registration
Number: K2021/903693/07)
First Respondent
SIPHO
PADINGTON VILAKAZI
Second Respondent
THAMSANQA
SUNNY MDLALOSE
Third Respondent
SONIA
MBELE
Fourth Respondent
JUDGMENT
NOKO J
Introduction
[1]
The applicant launched an application for leave to appeal
the
judgment and order I granted on 11 July 2024. I had dismissed an
application for interim order against the respondents from,
inter
alia
, using the name AlkamaX for its bottling water business as
it allegedly infringes on the applicant’s trademark,
alternatively,
Copyright Act, or unlawful competition of passing off.
Background
[2]
The background facts of the case are detailed in my judgment
and will
be summarised for the purposes of this judgment. The applicant is in
the water bottling business which is caried under
the name and style
Alkaline water PH 10 (“
logo”
). It is alleged that
it is the only company whose bottled water can retain PH of 10 for a
period of three years. It has established
itself in the market and
has a sizeable market share. The said logo is registered as a
trademark with Companies and Intellectual
Property Registration
Commission (“
CIPC”
) under registration number
2019/05158 and as such the applicant is entitled to the exclusive use
thereof. The applicant stated
that a decision was taken to establish
and launch and new brand name Alkamax. The second respondent who was
the designer on the
employ of the applicant was instructed to design
a logo intended for Alkamax products to be used in future. The said
name was also
reserved as a domain name on internet for future use.
The word supercharged is also used on its website.
[3]
The second respondent had access to confidential information,
master
suppliers and clients of the applicant in his position as an employee
of the applicant. he in addition had access to the
fabric where the
bottling was done.
[4]
The second respondent took employment with first respondent
who is a
competitor and provided some information obtained during his tenure
at the applicant which has the effect of giving the
first respondent
unfair advantage. The applicant specifically contends that the second
respondent took photos of the manufacturing
factory, name and the
logo and availed same to the first respondent and the later has
exploited them. The first respondent is currently
exploiting that
information to its advantage and with no benefit to the applicant.
[5]
The
applicant sought an interim interdict that the respondents be ordered
not to use the name Alkamax water of PH 10 as it infringes
on its
trademark registered under registration number 2019/05158 which
conduct is in contravention of section 34 of the Trade Marks
Act
[1]
.
Further that the applicant should be interdicted from making false
declaration of its water quality which is in contravention
of section
41 of the Consumer Act.
[2]
Such
declaration including usage of its nutritional table on its products.
[6]
The respondent contended, correctly as mirrored in my
judgment, that
the applicant’s case is found wanting for various reasons,
first, the applicant has failed to satisfy the
requirements for the
application of an interim interdict. Second, the applicant has failed
to satisfy the requirements set out
for a recourse in terms of Trade
Marks Act or Copyright Act and Consumer Protection Act. Thirdly the
applicant failed to attach
agreements which set out the terms and
conditions which clearly restrain the second respondent not to
disclose confidential information.
Fourth, the applicant has failed
to disclose list of companies with whom the applicant has Master
Agreements despite having undertaken
to avail same at court. Finally,
that the applicant has failed to prove that the CEO of the applicant
has failed to prove that
he is a South African.
[7]
The applicant is aggrieved about my judgment and brought
application
for leave to appeal which set out grounds though not clearly
delineated.
[8]
The applicant contends that it was not necessary that
the court
should consider whether the requirements for the CPA were satisfied
as contravention of the statute in itself is sufficient
to warrant
issuing of an interdict. In retort the respondent submitted that this
should not be considered since it has not been
raised as a ground for
the leave to appeal.
[9]
In relation to the argument that the applicant is not
entitled to the
design as the draft thereof was rejected by the applicant the latter
retorted that even though the logo may have
been rejected the
applicant remains the owner thereof. The respondent contended in
retort that the requirements set out in terms
of section 21(1)(d) of
the Copyrights Act were not satisfied. The applicant failed to
advance argument to gainsay this contention.
Legal
principles and analysis
[10]
Section 17 of the Superior Courts Act provides that leave to
appeal would
be granted where the court is,
inter alia
, of the
opinion that the appeal would have a reasonable prospect of success
and/or further that there is a compelling reason for
the appeal to be
heard.
[11]
It is now
trite
[3]
that the provisions of
section 17 introduced a higher threshold to be met in the application
for leave to appeal and the usage
of the word “would”
require the applicant to demonstrate that another court would come to
a different conclusion.
[12]
The mere
possibility of success, an arguable case, or one that is not hopeless
is not enough.
[4]
There must be
a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal.
[5]
[13]
The applicant has still failed to present a persuasive argument that
a prima
facie right has been established that the recourse in terms
of section 41 of the CPA has been satisfied. The applicant seek to
introduce a new argument that its redress could still be granted even
if there is no reference to section 41 of the CPA. This argument
cannot be correct as the judgment was based on section 41 as pleaded.
In any event the applicant failed to comply with the procedural
requirements necessary to introduce news fact during the leave to
appeal.
[14]
The applicant has failed to demonstrate the basis to contend that I
erred in
concluding that the applicant is entitled to the exclusive
use of the words AlkamaX, supercharged and or PH 10 and further that
there is a good grounds for a recourse under passing off for the
usage of those terms.
[15]
The applicant has still failed to advance a persuasive argument that
an interdict
should be granted despite its failure to attach correct
employment agreement upon which a claim breach of confidential
information
is predicated and further failing to disclose the said
confidential information. That such interdict should be granted
without
proving that there are agreements entered into with any major
distributor or at least attaching few agreements of those.
[16]
I also remained impervious that there is no need for the CEO of the
applicant
to prove that he is a South African in relation to a prayer
for the respondent to be interdicted that the CEO is not a South
African.
To this end the applicant contends that an allegation to
that effect is sufficient and there was no need to attach his
parents’
affidavits to support the allegation. The applicant
still failed to explain the basis for failing to attach even a copy
of the
identity document.
[17]
The objective of an interim order is to arrest certain conduct from
continuing
pending the finalisation of the adjudication of the
main dispute. The applicant appears not to be eager to see to the
finality
of the main application which was launched some four years
ago and the conduct complained of appears not continuing to warrant
any intervention by the court.
[18]
In the premises, I remain impervious that the applicant has succeeded
in demonstrating
that another court would come to a different
conclusion. There is also no other reason why the appeal should be
heard or there
are conflicting judgments on the matter under
consideration. In the premises, the application for leave to appeal
is bound to fail.
Costs
[19]
It is trite that the issue of costs is within the discretion of the
court.
In addition, it is also a general principle that the costs
should follow the results. There is no basis to uproot the said
principle
and I therefore hold that the application is bound to be
dismissed with costs.
Order
[20]
In the premises I grant the following order:
That the application
for leave to appeal is dismissed with costs
M
V Noko
Judge
of the High Court
This
judgement was handed down electronically by circulation to the
parties/their legal representatives by email and by uploading
it to
the electronic file of this matter on CaseLines. The date of the
judgment is deemed to be 9 September 2024.
Date
of
hearing:
19 July 2024
Date
of
judgment:
9 September 2024.
Appearances
For the Applicant:
Adv T L Marolen
Attorneys for the
Applicant:
Lawtons
Incorporated
For the Respondent:
Adv M Desai
Attorneys for the
Respondent
Govender Patel
Dladla Inc
[1]
Trade
Marks Act 194 of 1993
.
[2]
Consumer Protection Act
[3]
Mont
Chevaux Trust v Tina Goosen & 18 Others
2014
JDR 2325;
MEC
for Health, Eastern Cape v Mkhitha and Another
[2016]
ZASCA 176
“
Mkhitha
”);
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance In Re: Democratic Alliance v Acting National
Director of
Public Prosecutions and Others
[2016] ZAGPPHC 489.
[4]
Mkhitha
id
at para 17.
[5]
S
v Smith
[2011]
ZASCA 15
;
2012 (1) SACR 567
(SCA) at para 7.