Funeral Services (Pty) Ltd v Pinetown Funeral Services (Pty) Ltd and Others

• Jurisdiction: South Africa

Funeral Services (Pty) Ltd v Pinetown Funeral Services (Pty) Ltd and Others
1961 (2) SA 564 (N)

1961 (2) SA p564

Citation	1961 (2) SA 564 (N)
Court	Natal Provincial Division
Judge	Milne AJP
Heard	February 8, 1961
Judgment	February 22, 1961

Flynote : Sleutelwoorde

Trade and trade mark — Trade name — Interdict against D advertisement in telephone directory — No likelihood of confusion shown — Interdict refused.

Headnote : Kopnota

Where the applicant, who carried on business as undertakers, embalmers, funeral managers, monumental masons and coffin manufacturers, had applied for an interdict restraining the first respondent, who carried E on the same kind of business as that of the applicant, from inserting in the telephone directory any entry or advertisement calculated to induce belief that the first respondent's business was the business of, or any agency, branch or department of the applicant, and/or calculated to cause persons who desired to telephone the applicant to telephone the first respondent, and the Court found that the applicant had failed to establish that, as the result of persons reading the advertisement complained of, there was a substantial likelihood that business which F would have gone to the applicant would, because of such advertisement, go to the first respondent, and that on a balance of probabilities it had not been established either that the advertisement had led to actual confusion or that persons reading the advertisement were likely to think that they were reading an advertisement for the applicant or for a business associated with it, it dismissed the application. G

Case Information

Application for an interdict. The facts appear from the reasons for judgment.

R. C. C. Feetham, for the applicant.

R. G. L. Hourquebie, for the first respondent.

No appearance for the other respondents.

Cur. adv. vult. H

Postea (February 22nd).

Judgment

Milne, A.J.P.:

The applicant, which carries on business as undertakers, embalmers, funeral managers, monumental masons and coffin manufacturers, commenced business in July, 1935, and has its registered

1961 (2) SA p565

Milne AJP

head office at 24 - 28 Berea Road, Durban. The first respondent, ever since its incorporation in 1955, has carried on, in Pinetown, a business similar to that of the applicant's. The applicant has a branch of its business in Moore Road, Durban, and another in Pietermaritzburg and alleges that it draws business from the North and South Coasts of Natal A as well as from Pietermaritzburg and Durban, including the district of Pinetown. Pinetown is about 12 miles from Durban. The telephone numbers of all residents' businesses and other subscribers in Pinetown appear in the Durban telephone directory, there being no separate directory for Pinetown. In the Natal telephone directory all the Pinetown telephone numbers appear in the Durban section. The relief claimed by B the applicant against the first respondent, apart from costs, is as follows:

'That the first respondent be and is hereby interdicted and restrained from inserting or continuing to insert in the Natal telephone directory or in any other telephone or other directory, any entry or advertisement calculated to induce belief that the first respondent's business is the business of, or an agency, branch or department of the applicant, and/or C calculated to cause persons who desire to telephone the applicant to telephone the first respondent.'

The second respondent is the printer and the third respondent is the publisher of the Natal telephone directory. The relief claimed against them is an interdict restraining them from publishing or distributing any advertisement, or entry, in any directory showing the applicant's D name 'Funeral Services (Pty.) Ltd.' in association with the first respondent's telephone number. Although the second and third respondents were served with a notice of the application, they have not appeared to oppose the relief claimed by the applicant which, in the circumstances, claims no costs against the second and third respondents.

E On every page of the Natal telephone directory there appears at the top and at the bottom, an advertisement of one kind or another. In the Durban section, at page 178, of the current issue published in July, 1960, in the midst of names of subscribers whose names begin with the letter 'P', there appears a large advertisement reading as follows: F

G The words 'Funeral Services' are printed in letters ½ in. high in heavy type somewhat more than 1/16 in. thick. These two words occupy nearly 6½ in. across the top of the page. The abbreviations '(Pty.) H Ltd.' are in much slighter type and less than ¼ in. high. The word 'Pinetown' is printed in letters considerably less than ⅛ in. high and its length is about ⅝ in. The launching affidavit filed on behalf of the applicant contained, inter alia, the following paragraphs:

'6. The applicant is also known by the shorter and more colloquial name of 'Dove's', which name has been used for many years and which it uses on its letterheads, on its business premises and elsewhere, in addition to the name 'Funeral Services (Proprietary) Limited'. The name 'Funeral Services (Proprietary) Limited' has, however, become identified and is identified in the minds

1961 (2) SA p566

Milne AJP

of the public with the applicant, and the business carried on by the applicant.

7. Since its incorporation in 1935, the applicant has through the efforts of its members and directors built up a considerable reputation and a large and profitable business. By reason of the nature of the applicant's business, it has no regular clientele, but relies for its continued prosperity on the good name and reputation which it presently enjoys, which reputation is associated in the minds of the general A public both with the name 'Dove's' and 'Funeral Services (Pty.) Ltd.'.

11. All subscribers using the Durban automatic telephone system are listed under the district of Durban. All subscribers resident or carrying on business in Pinetown use the Durban automatic telephone system and are listed under the district of Durban, as are all subscribers in Durban and other districts in the vicinity of Durban. The section of the said directory concerned with the district of Durban constitutes over half of the said directory and is in daily use by the majority of subscribers.'

B In the answering affidavit of the first respondent, made by one of its directors, it is admitted 'that Dove's is well-known in Natal as an establishment carrying on business as funeral undertakers, etc.', but it is denied that the applicant company has become or is identified in the C minds of the public with the business of 'Dove's'. It is denied that the name 'Funeral Services (Pty.) Ltd.' is in any way identified by the public with any business carried on by the applicant. On behalf of the first respondent it is disclaimed that it had any intention, in publishing the advertisement in question, to lead people to think that its business was applicant's business or that it was associated with that of the applicant. Whilst stating that it has no intention of D repeating such advertisement, it denies that the advertisement was calculated to deceive members of the public into thinking that its business was or was associated with that of the applicant. In support of this denial the...