months later, namely on 26 August 2003. Du Toit added that the respondents had instructed him to design a
boat similar to the Falcon boats.
[22] In view of these circumstances, and because the respondents owed the second applicant money for boats
sold to them, the first applicant decided to restructure the first respondent's sole distributorship of Falcon
boats. By letter dated 2 December 2002, however, the respondents indicated that they were no longer
interested in distributing Falcon boats in Cape Town, ostensibly because they intended selling their own
Sovereign boats there.
[23] The first applicant initially decided not to pursue the matter further, but nevertheless instructed his attorneys
to write the respondents a letter dated 5 December 2002. In this letter it was stated that the respondents
had "illegally and unlawfully copied the Falcon designs" in producing their own range of inflatable boats. They
had deliberately planned their range of boats "to be similar in cosmetic appearance and overall design" to the
corresponding Falcon boats, thereby confusing buyers and "clamping on" to the first respondent's market.
They had, indeed, abused their position as a Falcon dealer to gain access to "privileged technical and market
information" for purposes of creating a product that was in direct competition with that of the first respondent
in both the local and overseas market. The applicants wished to resolve the matter amicably, but would not
hesitate to approach a court for an interdict should the respondents continue with their aforesaid conduct.
[24] The reason why the applicants did not seek an interdict at that stage was that they had no "concrete proof"
that the respondents planned to market their Sovereign boats in South Africa. On 11 July 2003, however, the
first applicant's son, Mr JMP Heyneman, and the second applicant's factory manager, Mr AJ Steenkamp, drove
past the first respondent's business premises and observed inflatable boats displayed on the sidewalk. They
were identical to the Falcon boats of the applicants, except that they bore the name "Sovereign".
[25] This prompted the first applicant to request one Donald Buxton, an expert in rigid inflatable boats, to view the
"Sovereign" boats from closer up. Buxton did so, on 14 July 2003, and established that such boats were, in
appearance and design, almost identical with the second applicant's Falcon boats. An employee of the first
respondent, however, explained to him that the Sovereign boats were structurally much stronger and better
rounded than the Falcon boats. They were, indeed much better than and superior to the corresponding Falcon
products. Buxton was not persuaded and formed the independent view that the respondents were blatantly
selling Falcon boats to the public under the name "Sovereign".
[26] The first applicant himself visited the first respondent's premises on 16 July 2003 and took photographs of the
boats on the sidewalk. When he and his attorney attempted, on 6 August 2003, to view the said boats once
again, the second respondent prevented them from doing so. On 28 August 2003 he was, however, able to
approach the displayed boats closely and formed the view once again that they were almost identical to the
Falcon boats. The said Mark Louw (paragraph 17 above) took further photographs to confirm this.
Page 391 of [2005] 2 All SA 382 (C)
[27] The first applicant concluded that the immediate reaction of a member of the public who looked at the
Sovereign boats would be that they were Falcon boats constructed by the second applicant. The differences
between them were, in the first applicant's view, cosmetic rather than substantial. There was hence a real
danger that a potential purchaser might be misled to infer that the Sovereign boats were in fact Falcon boats.
This constituted passingoff and unfair competition, justifying the issue of an interdict to prevent the
respondents from continuing with their unlawful and injurious conduct. No alternative remedy was available to
the applicants who would suffer irreparable damage should the relief sought not be granted.
Case for the respondents
[28] The third respondent, a mechanical engineer and a member of the first respondent, deposed to an answering
affidavit on behalf of the respondents. At the outset, in opposing the application vigorously, he expressed
indignation at the prolixity and frequently irrelevant nature of the many and varied allegations contained in
the founding affidavit. He also questioned the alleged urgency of the application, particularly in view of the
letter of demand going back to 5 December 2002 (paragraph 23 above) with no acceptable explanation for
the delay in bringing the present application at the end of August 2003. In any event there was no basis on
which the applicants could be entitled to search, seizure, deliveryup and destruction of offending items.
[29] The gist of the defence raised by the respondents is that the applicants have never sought the registration of
any intellectual property rights in the design, construction or appearance of their Falcon rigid inflatable boats
other than to apply for registration of a trademark in the name "Falcon". The mere copying of the Falcon boats
would hence not in itself constitute unlawful competition. In any event the respondents deny that they copied
the Falcon. It was one of a number of inflatable boats considered by marine architect Anton du Toit when
briefed by the respondents to design a boat for them. In this regard there was little variation in the design,
appearance and functionality of such boats in general, so that they would of necessity bear some similarity to
one another. Even so, there was no prospect that the Sovereign boat would be confused with the Falcon or
vice versa. They were luxury items sold predominantly in the leisure market to people who could afford them.
Discerning buyers would have no difficulty in distinguishing the Falcon getup, and its prominently displayed
name, from that of the Sovereign.
[30] In his affidavit the third respondent pointed out that he had been involved in the boatbuilding business since
1989. In 1995 he had commenced the business conducted by the first respondent as Waterfront Marine.
Initially it had specialised in the sale of secondhand power boats but from 1997, after it had obtained the
dealership for a wellknown make of outboard motors, it began selling predominantly new inflatables and
small power boats. At this time it also acquired the rights to sell Falcon inflatables and commenced an agency
to sell Gemini inflatables. By 1999, however, the popularity of the Falcon had increased to the extent that the
first respondent could concentrate only on marketing Falcon inflatables, in which