Georges Briere SA v Mthimunye Engineering Works CC and Others (2518/2011) [2013] ZAKZDHC 70 (15 May 2013)

Georges Briere SA v Mthimunye Engineering Works CC and Others (2518/2011) [2013] ZAKZDHC 70 (15 May 2013)

The court found that the respondents admitted to infringing the applicant's copyright in the BBMC performance graphs and brochures, and granted an interdict restraining further infringement. However, the applicant failed to establish passing-off, as the evidence showed that the respondents' customers were not confused and knew they were purchasing MP pumps, not Broquet pumps. The court also found no unlawful competition, as the Broquet pump designs were in the public domain and the respondents' conduct did not provoke moral indignation or breach the boni mores. The relief sought for passing-off and unlawful competition was therefore refused. Costs were awarded to the respondents, except...

Citation
[2013] ZAKZDHC 70
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 2013
Case Number
2518/2011
Procedural Posture
Civil Application / Judgment on Application for Interdict and Related Relief
Outcome
Application granted in part: interdict for copyright infringement granted; relief for passing-off and unlawful competition refused; costs awarded to respondents except for interlocutory applications.
Judges
Mbatha
Legal Topics
Copyright Infringement, Passing Off, Unlawful Competition, Trade Mark, Interdict, Damages Enquiry
Commercial and Corporate Intellectual Property Copyright Infringement Passing Off Unlawful Competition Trade Mark Interdict Damages Enquiry

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 on Application for Interdict and Related Relief

Legal Issues

  1. 1 Whether the respondents infringed the applicant's copyright in the BBMC performance graphs and brochures.
  2. 2 Whether the respondents passed off their MP pumps as those of the applicant or as being associated with the applicant.
  3. 3 Whether the respondents engaged in unlawful competition against the applicant.

Ratio Decidendi

The court found that the respondents admitted to infringing the applicant's copyright in the BBMC performance graphs and brochures, and granted an interdict restraining further infringement. However, the applicant failed to establish passing-off, as the evidence showed that the respondents' customers were not confused and knew they were purchasing MP pumps, not Broquet pumps. The court also found no unlawful competition, as the Broquet pump designs were in the public domain and the respondents' conduct did not provoke moral indignation or breach the boni mores. The relief sought for passing-off and unlawful competition was therefore refused. Costs were awarded to the respondents, except...

Court Disposition

Application granted in part: interdict for copyright infringement granted; relief for passing-off and unlawful competition refused; costs awarded to respondents except for interlocutory applications.

Orders

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