Hampo Systems (Pty) Ltd v Audiolens (Cape) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Schock J
• Judgment Date: 20 June 1985
• Citation: 1985 (4) SA 257 (C)
• Hearing Date: 20 February 1985
• Court: Cape Provincial Division

Schock J:

This is an application on notice of motion for an G order in the following terms:

"1.1

Interdicting the respondent from unlawfully competing with the applicant by:

1.1.1

selling foreign products under the trade mark Pentax; and/or

1.1.2

H informing purchasers that such foreign products are warranted against defect and that such warranty will be honoured by the applicant and/or its agents or distributors;

1.2

interdicting the respondent, either by itself or through its servants or agents, from passing-off I products bearing the trade mark Pentax and not emanating from the applicant or being connected in the course of trade with the applicant;

1.3

directing the respondent to deliver up to the applicant all foreign products in its possession or under its control;

1.4

interdicting the respondent from passing-off its services or its business as being connected in the course of trade with the applicant by selling, in the J Republic of South Africa, foreign products."

Schock J

Applicant is a company carrying on business as a distributor A and repairer of cameras, lenses and photographic accessories. Since 1956 applicant has been distributing "Pentax" cameras in South Africa. The mark Pentax is registered in terms of the Trade Marks Act 62 of 1960. The registered proprietor of the said trade mark is a Japanese firm referred to in the papers as B Asahi.

At the time when this application was launched applicant was distributing the said products in terms of an agreement dated 19 October 1981 between applicant and a company known as Asahi Optical. The latter company was a wholly-owned subsidiary of Asahi, having the authority to grant such rights. This 1981 C agreement was during the course of the present litigation superseded by another agreement between applicant and Asahi Optical dated 25 September 1984, which was not referred to in the affidavits but was handed in to the Court during the hearing by consent.

The 1981 agreement provides that applicant is the exclusive distributors of Pentax cameras in South Africa. Moreover in D terms of this agreement the applicant is required to guarantee the Pentax products against material and workmanship defects and to repair and service defective products returned to it during a guarantee period.

The applicant is also required to repair and service at reasonable prices all Pentax products which are in need of E repair and servicing after the expiry of the guarantee period. The applicant is also obliged to maintain a given market share in respect of Pentax products by advertising its products and by promoting and securing the maximum distribution of such products in the Republic and adjoining areas. This obligation has obliged the applicant to maintain facilities and personnel F adequate to give effect to the guarantees and its other obligations. It is also obliged to acquire and maintain specialised equipment with the Pentax range of equipment to a substantial value and to advertise and promote the products in other ways.

Applicant is a distributor and not a registered user of Asahi G in respect of the trade marks of Asahi.

In 1982 it came to the knowledge of applicant and Asahi that respondent was importing or about to import and to sell Pentax brand products in South Africa. In consequence thereof a letter was addressed on behalf of applicant and Asahi to respondent. H This letter reads as follows:

"1.

We act for Asahi Kogaku Kogyo Kabushiki Kaisha of Japan...