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In the matter between: The business of the Applicant is the design, manufacture and marketing of industrial pumps and components throughout the world. This application concerns the type of Broquet pump called the BBMC type which has six 6 asymetrical lobes and was available in seven 7 different sizes. It is generally referred to as massecuite pumps. Both his grandfather and father were also ppumps with the business of the applicant and his father, J F Briere, deposed to an affidavit in the application.
In the answering affidavit a breach of copyright was admitted and in argument before me it was conceded on behalf of the First Respondent that the order in paragraph 1 of the Notice of Motion should be granted.
I will deal with this aspect at the end of this judgment.
Third Respondent deposed to the main affidavit in opposition to the relief being sought. According to him First Respondent provides professional engineering services to various industries including the sugar industry. In the case of a pump the first respondent will only manufacture a specific pump to an order from a customer, which in the case of a Broquet pump initially consisted of manufacturing parts of the pump from specifications supplied to it by for example the sugar industry as the applicant did not have an active after service sales to readily supply spare parts to its pumps and it was sometimes just too expensive for the imports of the parts to be made.
POMPES BROQUET: Pumps for the sugar industry – REY & LENFERNA
At a later stage Rely Precision Castings were able to supply complete pumps to the local market, similar in nature to the Broquet pumps and called its pumps RM pumps. During the driving force behind the pump business of Rely Precision Castings died and First Respondent took over the business in supplying pumps to industries similar to the Broquet pumps but changed the name of the pump from an RM pump to that of an MP pump and sold the first MP pump during Although the basis of the pump remained the same this is not due to any unique feature thereof as the pump in question has been in the public domain for approximately 30 years and its basic mould and features can be accessed on the internet.
The fact that the mould resembles that of a Broquet pump is according to the Respondents entirely fortuitous as that is what an external gear pump with rotor lobes looks like. It is also claimed that the MP pumps had undergone significant changes from the original Broquet pumps the most notable of which is that stainless steel is used in its manufacture as opposed to ductile iron and mild steel, a wear plate was introduced and the direction of flow was configured to go both clockwise and anti-clockwise.
Respondents were adamant that it was never the intention to pass its pumps of as Broquet pumps and resisted the relief sought in the Notice of Motion, apart from that in paragraph 1 thereof.
Manufacturing or selling the offending pumps in the form shown in annexure OB9 to the founding affidavit. Using the parts codes currently used by them in relation to the offending pumps; or. Using the performance graphs and other works covered by the order in a in relation to the offending pumps. Ordering an enquiry into damages.
In the event of an enquiry in terms of prayer d above being ordered and the parties being unable to reach agreement as to the future pleadings to be filed, discovery, inspection or other matters of procedure relating to the enquiry, an order authorising either of or any party to make application to this Honourable Court for directions in regard thereto; and.
Granting the Applicant the costs of this application. Parts codes currently used by them in relation to the offending pumps; or. The performance graphs and other works covered by the order in a in relation to the offending pumps. It is trite law that an application for an amendment should as a rule be granted unless the prejudice to the other party is of such a nature that the proposed amendment should not be granted.
The amendment addressed facts that were fully canvassed in the affidavits and consist of an additional argument that may avail the Applicant based on the papers filed. It is difficult to imagine in what respects the Respondents would have changed the contents of the affidavits filed in opposition to the application had the proposed amendment been an order sought from the beginning.
For these reasons the amendment is granted. The Applicant brought a substantive application for condonation for its late filing of this affidavit and this application was likewise opposed by the Respondents. The aim was to remove any references in these affidavits to evidence of a hearsay nature and conclusions drawn by the witness Chevillard.
Hearsay evidence falls to be ignored even in the absence of a formal objection thereto or an application to strike out the contents that amounts to hearsay evidence and the same will apply to conclusions drawn by a witness not supported by any facts and based on conjecture or idle speculation. On behalf of the Respondents, by way of example, heads of argument were filed to cater for each of the objections taken.
I fully intend to deprive the Respondents of costs of these applications, excluding the application for condonation which became settled, that cluttered up the record whatever the merits of the applications. More about this will follow in due course. The onus of establishing the likelihood of confusion on a balance of probability rests upon the Applicant; and inasmuch as these proceedings are by way of affidavit I must decide whether the Applicant has succeeded in discharging that onus by virtue only of those facts that are admitted by the Respondents or which are not the subject of a genuine dispute.
A passing-off can occur even if the name of the product does not have a similarly sounding brand name, as in this case, but the external appearance has become the embodiment of the product and the consumer would be easily convinced that the product is that of the Applicant despite the fact that the brand name is different and not capable of confusion with that of the Applicant. Whether a passing-off had occurred in such circumstances would depend on the peculiar facts of a case.
Counsel for the Respondents has taken issue with what has been stated by me and I quote extensively from his heads of argument: Public policy is against protecting the shape and configuration of functional or utilitarian articles as opposed to an article whose shape is capricious or which incorporates capricious features or shape as was the case in Weber Stephen Products Co. It is submitted that the Applicant is seeking to acquire, by the relief that it is asking for, a monopoly in respect of functional and utilitarian pumps of a particular shape and configuration and having particular attributes.
It is submitted that as a matter of law it cannot do this. Its clear intention in this regard appears from its founding papers and the relief sought to pkmps reference has been above.
It is well established that the law pertaining to passing —off and indeed the law pertaining to trade marks does not create monopolies. Competition is fundamental to our economic system.
And at H-I with reference to Schultz v Butt 3 a. Thus it appears to me that in our law, as in many of the foreign systems to which Ms Fellner refers, where statutory protection can be claimed but is not or where statutory protection expires or is lost, anyone is free to copy. This principle is reinforced particularly pumpz the law relating to passing-off whereas as a matter of policy passing-of relief is excluded in the case of the shape or configuration of functional or utilitarian articles or components of functional or utilitarian articles.
I conceive the position to be that anyone can then go to the patents office and get a copy of the specifications. I pumsp he is then entitled to copy those and make a machine, line to line, angle for angle, also as to the length, width, thickness and quality of materials exactly the same as the machine that had been patented… He is entitled to make an exact replica.
It follows that the get-up which the competing trader cannot relates to the non-functional elements only. It is submitted that public policy has set its face against the monopolisation of functional shapes in the absence of statutory protection such as a design registration or patent protection. The probabilities are simply overwhelmingly in favour of the fact that the specific consumers knew that they were not purchasing Broquet pumps and any evidence in the affidavits to that effect was in any event based on inconclusive speculation and hearsay.
Thereafter a downward trend was noticeable with all sales terminating by when the turnover reached the zero mark with regard to new pumps and R6 It is this vroquet in business that caused the Applicant to launch investigations and to determine, probably correctly, that the decline in business was due to the activities of the First Respondent. The test for wrongfulness is one of fairness and honesty having regard to the boni mores and the general sense of justice rboquet the community.
Questions of public policy may be important in a particular case, for example the importance of a free market and competition.
He says this explanation lacks candour and should therefore be rejected as false. It had ceased to be any kind of competitor at all since and it was only during November that a letter was addressed to the First Respondent on behalf of the attorneys acting on behalf the Applicant to address the issue of passing off. The allegation borquet infringement of copyright was not addressed in this letter but in fairness to the Applicant it may not have known about it brqouet that stage.
As noted in the locus classicus in the field, Schultz v Butt: In such a case, the unlawfulness which is a requisite of Aquilian liability may fall into a category of clearly recognized illegality…. But it is not limited to unlawfulness of that kind. The relief sought by the applicant in prayer c of its notice of motion, as it is sought to be amended, is based on the law as it is stated Schultz v Butt.
The applicant does not contend that the reverse engineering i. The facts in Schultz v Butt are illustrative of the manner in which copying can be rendered unlawful. Schultz then sold boats, including the copied hull, in competition with Butt. In addition, Schultz registered a design right in respect of a boat including an identical hull to that which had been developed by Butt.
In that case, the court made it clear that the boat hull which had been reversed engineered by Schultz was in the public domain and that there was nothing confidential about it.
One may freely and exactly copy it without his leave and without payment of compensation. The court went on, however, to make clear that the question in that case as in this case is: The use of the specifications of the Brouquet pump was freely available and there is an absence of the contemporaneous and dishonest type of activity so apparent in the Schultz v Butt case.
The Applicant could apparently not have cared less about its pumps in South Africa for the period to November when it ought to have known that it had pumps working in the sugar industry that will at least require replacement parts from time to time. Such competition as there were has therefore not been shown by the Applicant to warrant the label of unfairness. The fact that prayer 1 of the Notice of Motion has to be granted does not necessarily mean that the Applicant will be entitled to the costs of this application.
The infringement of copyright formed part of the evidence for the other and more material relief sought and in that the Applicant was singularly unsuccessful. It is not possible to separate the costs incurred in respect of the copyright infringement from the overall costs of the application.
The Applicant will not be awarded the costs of the broqquet for the amendment as it should have asked for the relief it subsequently sought at the stage when the application was launched. To avoid any confusion I intend to disallow all the costs incurred in respect of the interlocutory applications excluding the opposed application for broqueet including heads of argument filed pursuant thereto. Counsel for the Applicant: Ridgeside Office Park, Umhlanga Rocks.
Counsel for the Respondents: