De Freitas v Jonopro (Pty) Ltd and Others (2015/41435) [2016] ZAGPJHC 103; 2017 (2) SA 450 (GJ) (9 March 2016)

De Freitas v Jonopro (Pty) Ltd and Others (2015/41435) [2016] ZAGPJHC 103; 2017 (2) SA 450 (GJ) (9 March 2016)

The court found that the respondents were not in contempt of the prior order, as they did not use the name 'Cheeky Tiger' at their establishment. However, the court held that the applicant was entitled to further interim relief restraining the respondents from passing off the applicant's distinctive get-up and branding, including the use of specific colour schemes, logos, and thematic elements. Issue estoppel applied to the findings made in the prior urgent application, precluding the respondents from disputing the applicant's reputation and rights in the get-up for interim relief purposes. The alleged oral agreement to change the business name was found to be prima facie void due to...

Citation
[2016] ZAGPJHC 103
Parties
Applicant: Mario Lino Sousa De Freitas; Respondent: Jonopro (Pty) Ltd; Respondent: Bettencourt Jardim Esvaldo; Respondent: Pandazis Christos; Respondent: Black Ball Fever
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 March 2016
Case Number
2015/41435
Procedural Posture
Urgent Application / Interim Interdict and Contempt Application Following Prior Urgent Interim Relief
Outcome
Interim interdict granted restraining respondents from passing off applicant's get-up and branding; costs awarded against second and third respondents.
Judges
Spilg
Legal Topics
Passing Off, Interim Interdict, Issue Estoppel, Actionable Non Disclosure, Common Law Trademark Rights
Commercial and Corporate Civil Procedure Passing Off Interim Interdict Issue Estoppel Actionable Non Disclosure Common Law Trademark Rights

Case Brief

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Parties

Mario Lino Sousa De Freitas

Applicant

Jonopro (Pty) Ltd

Respondent

Bettencourt Jardim Esvaldo

Respondent

Pandazis Christos

Respondent

Black Ball Fever

Respondent

Procedural Posture

Urgent Application / Interim Interdict and Contempt Application Following Prior Urgent Interim Relief

Legal Issues

  1. 1 Whether the respondents are in contempt of the interim order granted by Georgiadis AJ on 4 December 2015.
  2. 2 Whether the applicant is entitled to an interim interdict restraining the respondents from passing off the applicant's get-up and branding.
  3. 3 Whether issue estoppel applies to findings made in the prior urgent application.

Ratio Decidendi

The court found that the respondents were not in contempt of the prior order, as they did not use the name 'Cheeky Tiger' at their establishment. However, the court held that the applicant was entitled to further interim relief restraining the respondents from passing off the applicant's distinctive get-up and branding, including the use of specific colour schemes, logos, and thematic elements. Issue estoppel applied to the findings made in the prior urgent application, precluding the respondents from disputing the applicant's reputation and rights in the get-up for interim relief purposes. The alleged oral agreement to change the business name was found to be prima facie void due to...

Court Disposition

Interim interdict granted restraining respondents from passing off applicant's get-up and branding; costs awarded against second and third respondents.

Orders

  • Pending the outcome of the application instituted by the applicant, the first, second and third respondents are interdicted and restrained from utilising the following logos and get-ups at the business located at 29 Pretoria Road and currently known as SA’s Hottest Action Bar: (a) a woman’s face with tiger features...
  • The applicant is awarded two thirds of the total costs on the attorney and client scale, including the engagement of two counsel, to be paid by the second and third respondents jointly and severally, the one paying the other to be absolved.