Sunsmart Products (Pty) Ltd v Flag and Flagpole Industries (Pty) Ltd t/a National Flag (97/10535, 99/3281, 7385/2004) [2005] ZACCP 2; 2005 BIP 31 (CP) (7 November 2005)

Sunsmart Products (Pty) Ltd v Flag and Flagpole Industries (Pty) Ltd t/a National Flag (97/10535, 99/3281, 7385/2004) [2005] ZACCP 2; 2005 BIP 31 (CP) (7 November 2005)

The court found that the defendant's banner did not infringe the plaintiff's patent 97/10535 because an essential integer—namely, that the pole is adapted to engage the upper periphery of the material—was absent; in the defendant's product, the material is adapted to engage the pole, not vice versa. The absence of this integer was fatal to the infringement claim. Regarding the design registration A97/1155, the court held that the defendant's banner was not substantially different from the registered design, but the design registration was invalid for lack of novelty, as the tear-drop shape applied to a flag was already disclosed in the prior art (specifically, the Rehbein patent). The...

Citation
[2005] ZACCP 2
Parties
Plaintiff: Sunsmart Products (Pty) Ltd; Defendant: Flag and Flagpole Industries (Pty) Ltd t/a National Flag
Court
Court of the Commissioner of Patents
Jurisdiction
South Africa
Judgment Date
7 November 2005
Case Number
97/10535, 99/3281, 7385/2004
Procedural Posture
Civil Trial / Final Judgment After Consolidated Hearing of Three Actions
Outcome
The plaintiff's actions under case numbers 97/10535 and 7385/2004 are dismissed with costs. The agreed order is granted in respect of case number 99/3281, including an interdict and an enquiry into damages.
Judges
B.R. Southwood
Legal Topics
Patent Infringement, Design Registration, Novelty Requirement, Inventive Step, Aesthetic Designs, Interdict Relief
Intellectual Property Patent Infringement Design Registration Novelty Requirement Inventive Step Aesthetic Designs Interdict Relief

Case Brief

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Parties

Sunsmart Products (Pty) Ltd

Plaintiff

Flag and Flagpole Industries (Pty) Ltd t/a National Flag

Defendant

Procedural Posture

Civil Trial / Final Judgment After Consolidated Hearing of Three Actions

Legal Issues

  1. 1 Whether the defendant's manufacture and sale of flying banners infringes the plaintiff's patent 97/10535 and design registration A97/1155.
  2. 2 Whether patent 97/10535 and design registration A97/1155 are invalid due to lack of novelty.
  3. 3 Whether patent 97/10535 is invalid for lack of inventiveness.

Ratio Decidendi

The court found that the defendant's banner did not infringe the plaintiff's patent 97/10535 because an essential integer—namely, that the pole is adapted to engage the upper periphery of the material—was absent; in the defendant's product, the material is adapted to engage the pole, not vice versa. The absence of this integer was fatal to the infringement claim. Regarding the design registration A97/1155, the court held that the defendant's banner was not substantially different from the registered design, but the design registration was invalid for lack of novelty, as the tear-drop shape applied to a flag was already disclosed in the prior art (specifically, the Rehbein patent). The...

Court Disposition

The plaintiff's actions under case numbers 97/10535 and 7385/2004 are dismissed with costs. The agreed order is granted in respect of case number 99/3281, including an interdict and an enquiry into damages.

Orders

  • Action under case number 97/10535 is dismissed with costs, including costs of two counsel.
  • Under case number 99/3281, an interdict is granted restraining the defendant from infringing patent 99/3281; an enquiry into damages is ordered; costs are awarded to the plaintiff on an unopposed basis.