Helios Ltd v Letraset Graphic Art Products (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Margo J
• Judgment Date: 09 June 1972
• Citation: 1973 (4) SA 92 (T)
• Hearing Date: 09 June 1972
• Court: Court of the Commissioner of Patents

Margo, J.:

This is the return day of a rule nisi operating as a temporary interdict. The rule was issued after an urgent application of Friday night, 2nd June, 1972, and it called on the respondent to show cause why the following relief should not be granted, namely, an order -

1.

Declaring that the threats contained in a certain letter (to which I B shall refer as annexure 'E') are unjustifiable.

2.

Interdicting the respondent from distributing the letter, annexure 'E', to any person or making any similar threats.

3.

Directing the respondent to take steps to withdraw the said threats.

4.

Alternatively, an order in terms of paras. 2 and 3 hereof to operate as an interim interdict pending an action for a declaration that the said threats are injustifiable, and for a permanent interdict and for damages.

5.

Directing the respondent to pay costs.

C The rule was ordered to operate as an interim interdict in terms of para. 2 of the applicant's notice of motion.

Mr. Kentridge, for the applicant, has sought confirmation of the rule only in respect of para. 4 thereof.

The interim interdict is aimed at restraining the publication of a letter containing threats of infringement proceedings against the applicant's customers. It is alleged that the letter, annexure 'E', is D incorrect and misleading in material respects, that the threats are not justified, and that an interim interdict is required pending the decision of an action to be brought by the applicant against the respondent, for relief under sec. 55 of the Patents Act.

The confirmation of the rule was opposed by the respondent, and a preliminary point was taken that the Commissioner of Patents has no jurisdiction at all to grant an interim interdict pendente lite, before at least a summons has been issued to initiate the lis.

E On the merits of the application I was treated by able counsel on both sides to arguments of a quality and interest which greatly lightened the burden of hearing this case.

Mr. Kentridge, for the applicant, did not content himself with an application for interim relief in this court. Another application was brought and argued in the Transvaal Provincial Division, in which the applicant sought common law relief arising out of the publication of annexure 'E'. The relief there claimed was a permanent interdict on the F ground of injurious falsehood, or alternatively an interim interdict, pending the result of an action to be instituted in the Transvaal Provincial Division for injurious falsehood.

The application in the Transvaal Provincial Division has been disposed of and a permanent interdict has been granted to the applicant, restraining the respondent from publication of annexure 'E'.

In my opinion the granting of that relief in another Court is a factor of which I must take notice in this court.

G Mr. Kentridge argued that the applicant is entitled to relief in both courts. It would have sought relief under sec. 55 of the Patents Act in the alternative to the common law relief, but for the fact that the Commissioner has no jurisdiction in regard to the common law claim, and that sec. 77 (1) of the Patents Act excludes the jurisdiction of any other court in regard to the claim under sec. 55 of that Act.

It may be that in theory Mr. Kentridge is right, but in practice it is highly undesirable that there should be at the same time two separate H proceedings in different courts between the same parties, on the same facts, and for relief aimed at substantially the same result. That view may have to be altered where the respective relief claimed in the different courts is aimed at substantially different results. In the present dispute the applicant sought an interim interdict from the Commissioner, pending an...