Brian Boswell Circus (Pty) Ltd and Another v Boswell-Wilkie Circus (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Corbett JA, Miller JA, Van Heerden JA, Galgut AJA and Nicholas AJA
• Judgment Date: 22 August 1985
• Citation: 1985 (4) SA 466 (A)
• Hearing Date: 14 May 1985
• Court: Appellate Division

Corbett JA:

This appeal concerns the right of a person to trade under his own name. The respondent operates a circus in South Africa under the name and style of "Boswell-Wilkie Circus". G First appellant, Brian Boswell Circus (Pty) Ltd, is the alter ego of second appellant, Brian Stanley Boswell, in that he is the sole director of and sole shareholder in that company. In November 1982 it was announced on behalf of first appellant that it proposed to commence business in Natal as a circus under the name "Brian Boswell Circus". Respondent thereupon H brought an urgent application in the Natal Provincial Division claiming an order interdicting appellants from carrying on a circus business under a name containing the word "Boswell" or in any other way passing off its (or his) business as that of the respondent anywhere in the Republic of South Africa. The I application, which was opposed, came initially before THIRION J, who granted an interim interdict pending the final determination of the application and gave leave to the parties to file supplementary affidavits. This was done and the application was finally heard by DIDCOTT J, who delivered a reserved judgment on 14 October 1983. This judgment has been reported (see Boswell-Wilkie Circus (Pty) Ltd v Brian Boswell J Circus (Pty) Ltd and Another 1984 (1) SA 734 (N)). DIDCOTT J granted the application and made an order in the following terms:

Corbett JA

"1.

The respondents are, and each of them is, interdicted A from operating the business of a circus, and from presenting or promoting any performance by one, under the name Boswell or any name of which Boswell is a part.

2.

The interdict will last until it is lifted by this Court and, should that not happen, it will run B indefinitely.

3.

The respondents or either of them may apply to this Court, on fresh evidence which is tendered, for the discharge of the interdict or for the amendment of its terms.

4.

Such application may be brought at any stage, after due notice to the applicant or to the owner or operator for the time being of the circus business C which the applicant now conducts.

5.

The respondents are ordered jointly and severally to pay the costs of the present proceedings, including those the applicant has incurred by employing the services of two counsel, but not including any of which Mr Justice THIRION has disposed already."

D On 2 December 1983 the Natal Provincial Division made an order granting appellants leave to appeal to this Court and at the same time directing that the order granted by DIDCOTT J be brought into effect immediately in terms of Rule of Court 49 (ii). Appellants' attorneys failed, however, to prosecute the appeal properly. The notice of appeal was defective and was not lodged timeously with the Registrar of this Court; nor were the E two special powers of attorney authorising the prosecution of the appeal timeously filed. An application for the condonation of these irregularities was heard by us at the inception of the hearing of the appeal. Respondent did not oppose the application and it was granted at the hearing. Appellants must F pay the costs of the application.

The relevant background facts are common cause and may be thus stated. The Boswell Wilkie Circus, run by the respondent, is the product of an amalgamation in 1963 of two circus businesses called respectively "Boswell's Circus" and "Wilkie's Circus". Boswell's Circus has quite a long history. In about 1911 four G Boswell brothers, Jim, Walter, Sidney and Alfred, the sons of James Boswell, a circus and menagerie proprietor in Britain, came to South Africa to work for the circus of a Madame Frank Fillis. When the Fillis circus broke up in 1913 the Boswell brothers started their own circus under the name and style of "Boswell Brothers Circus". This circus thereafter continued to operate in South Africa in association with the name Boswell. H In 1948 a company, Boswell Brothers Circus (Pty) Ltd, was incorporated to run what was then styled the "Boswell Circus" or, sometimes it would seem, "Boswell's Circus". This company was "owned" by the Boswell family. During 1953 African Consolidated Theatres (Pty) Ltd acquired a controlling interest in Boswell Brothers Circus (Pty) Ltd and by 1963 it owned the I entire issued share capital in that company.

In 1955 Whilma Howe Wilkie started operating a circus in South Africa under the name and style of "Wilkie Circus" or "Wilkie's Circus". The two circuses traded in opposition to one another. Then came the amalgamation agreement of 1963. In terms thereof Boswell Brothers Circus (Pty) Ltd sold the assets of its circus J business to the company under

Corbett JA

A which Wilkie traded, viz African Entertainment (Pty) Ltd and a combined circus, known as "Boswell Wilkie Circus", came into being. This circus has operated under that name ever since. The 1963 agreement provided that 50 per cent of the shares in African Entertainment (Pty) Ltd were to be sold to African B Consolidated Theatres (Pty) Ltd, the other 50 per cent remaining with Wilkie. In 1978 the assets of African Entertainments (Pty) Ltd were transferred to respondent; and at present 45 per cent of the shares in respondent are held by Wilkie, 45 per cent by SA Teater Belange (the successor to African Consolidated Theatres (Pty) Ltd) and 5 per cent each by M Carrè and T Cripsy, both directors of respondent.

C Second appellant described himself as "a fifth generation Boswell to be involved in the circus industry". He was born "in the circus" and spent the first few years of his life with his father, Stanley Boswell, in the circus. After leaving school in 1959 he joined the Boswell Circus professionally and remained D with it until the amalgamation in 1963. In 1964 he joined a rival circus, the Chipperfield Circus, and was employed there as ringmaster and lion-tamer until the end of 1967, when the circus closed down. From 1973 onwards the second appellant has managed a lion park and animal farm near Pietermaritzburg. And, as I have indicated, it was in November 1982 that second E appellant announced his intention to operate, through first appellant, a circus under the name and style of "Brian Boswell Circus".

Respondent's claim to interdict the appellants from using the name Boswell in this way is based upon the averment that this would amount to a wrongful passing off by the appellants. The wrong known as passing off is constituted by a representation, F express or implied, by one person that his business or merchandise, or both, are, or are connected with, those of another. In the present case we are concerned with businesses which provide entertainment to the public and which do not market merchandise. I shall, therefore, confine my further discussion of the legal principles involved to wrongful G representations concerning the wrongdoer's business. Where they are implied, such representations are usually made by the wrongdoer adopting a name for his business which resembles that of the aggrieved party's business; and the test then is whether in all the circumstances the resemblance is such that there is a reasonable likelihood that ordinary members of the public, or a substantial section thereof, may be confused or deceived into H believing that the business of the alleged wrongdoer is that of the aggrieved party, or is connected therewith. Whether there is such a reasonable likelihood of confusion or deception is a question of fact to be determined in the light of the particular circumstances of the case. (See generally Policansky Bros Ltd v L & H Policansky 1935 AD 89 at 97, 98; Truck and Car I Co Ltd v Kar-N-Truk Auctions 1954 (4) SA 552 (A) at 557, 559; Capital Estate and General Agencies (Pty) Ltd and Others v Holiday Inns Inc and Others 1977 (2) SA...