Georges Briere SA v Mthimunye Engineering Works CC and Others (2518/2011) [2012] ZAKZDHC 24 (15 May 2012)

Georges Briere SA v Mthimunye Engineering Works CC and Others (2518/2011) [2012] ZAKZDHC 24 (15 May 2012)

The court found that while the respondents admitted copyright infringement regarding the BBMC performance graphs and brochures, the applicant failed to establish passing-off or unlawful competition. The evidence showed that the respondents' customers were industry professionals who were aware they were purchasing MP pumps, not Broquet pumps, and there was no likelihood of confusion. The court accepted that the shape and configuration of the pumps were functional and in the public domain, and public policy does not protect such features absent statutory protection. The applicant's business had ceased in South Africa by 2005, and there was no evidence of dishonest or unfair competition. The...

Citation
[2012] ZAKZDHC 24
Parties
Applicant: Georges Briere SA; Respondent: Mthimunye Engineering Works CC; Respondent: Church, Gary John; Respondent: Church, Michael David
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
15 May 2012
Case Number
2518/2011
Procedural Posture
Civil Application / Judgment After Opposed Motion and Interlocutory Applications
Outcome
Application granted only in respect of copyright infringement; all other relief refused.
Judges
Mbatha
Legal Topics
Copyright Infringement, Passing Off, Unlawful Competition, Trade Mark, Reverse Engineering
Intellectual Property Commercial and Corporate Copyright Infringement Passing Off Unlawful Competition Trade Mark Reverse Engineering

Case Brief

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Parties

Georges Briere SA

Applicant

Mthimunye Engineering Works CC

Respondent

Church, Gary John

Respondent

Church, Michael David

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Motion and Interlocutory Applications

Legal Issues

  1. 1 Whether the respondents infringed the applicant's copyright in the BBMC performance graphs and brochures.
  2. 2 Whether the respondents engaged in passing-off by selling MP pumps resembling Broquet pumps.
  3. 3 Whether the respondents competed unlawfully with the applicant by selling pumps in the form shown in annexure OB9.

Ratio Decidendi

The court found that while the respondents admitted copyright infringement regarding the BBMC performance graphs and brochures, the applicant failed to establish passing-off or unlawful competition. The evidence showed that the respondents' customers were industry professionals who were aware they were purchasing MP pumps, not Broquet pumps, and there was no likelihood of confusion. The court accepted that the shape and configuration of the pumps were functional and in the public domain, and public policy does not protect such features absent statutory protection. The applicant's business had ceased in South Africa by 2005, and there was no evidence of dishonest or unfair competition. The...

Court Disposition

Application granted only in respect of copyright infringement; all other relief refused.

Orders

  • Respondents are interdicted and restrained from infringing the applicant's copyright subsisting in its BBMC performance graph and brochures for its BROQUET BBMC pump as indicated in annexures OB5 to OB8, by reproducing, copying, adapting, or distributing copies thereof.
  • Applicant is ordered to pay the respondents' costs, including costs consequent on the employment of two counsel where applicable, and costs incurred in the application for condonation for late filing of the applicant's replying affidavit.