Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd

• Jurisdiction: South Africa
• Judge: De Villiers JP, Van Wyk J and Rosenow AJ
• Judgment Date: 25 September 1956
• Citation: 1957 (4) SA 234 (C)
• Court: Cape Provincial Division

A Van Wyk, J.:

This is an appeal against the judgment of VAN WINSEN, J., dismissing with costs an application brought by the appellant - applicant in the Court below, and hereinafter referred to as applicant - on notice of motion for an interdict restraining respondent firm

'(a)

from continuing to use, and/or market its sparkling Wine in the B get-up presently used by it for the sparkling wine known as 'Chamblanc';

(b)

from using or marketing its sparkling wine or any other wine in any other get-up so closely resembling that used by applicant for the marketing of the sparkling wine known as 'Grand Mousseux' as to be calculated to cause confusion and to allow respondent's sparkling wine to be passed off as being 'Grand Mousseux' or from in any other way passing off its wine as that of applicant or as being 'Grand Mousseux',

(c)

C from continuing to use the body label presently used by it for the marketing of 'Chamblanc' sparkling wine, as being an infringement of applicant's registered Trade Mark 146/43 or from using any other label which either is substantially identical with the said trade mark or so nearly resembles it as to be likely to deceive.'

The affidavits filed on behalf of the parties reveal a conflict of fact in regard to certain issues. The Court a quo did not send the matter to D trial but decided it on the basis that it had to confine itself 'to such facts as are substantially common cause'. One of the grounds of appeal is that in view of the conflict of fact the matter should have been sent to trial for the hearing of oral evidence, but this was abandoned by Mr. Blackstock, who appeared on behalf of the appellant, his contention being that, despite the aforesaid conflict of fact, E judgment should have been given in favour of the applicant. It seems to me that where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order. I cannot agree with the learned Judge's view that he was confined to such facts as were F substantially common cause. I shall accordingly only consider the facts alleged or admitted by the respondent. Where it is clear that facts, though not formally admitted cannot be denied, they must be regarded as admitted. The arguments, submissions and opinions contained in the aforesaid affidavits are of course not facts, and will not be regarded as such.

G The applicant, who carries on business at Stellenbosch as a producer of wines and spirits, has since 1924 manufactured at Stellenbosch and marketed within the Union and in a number of other countries including New Zealand, the United Kingdom, and Northern and Southern Rhodesia, a sparkling wine under the name of 'Grand Mousseux'. It is the registered H proprietor in terms of the Patents, Designs, Trade Marks and Copyright Act, 9 of 1916, of Trade Marks 145/43 and 146/43. The first-mentioned trade mark relates to the use of the name 'Grand Mousseux', whereas the last-mentioned trade mark grants rights in respect of a label which is used by applicant in marketing the aforesaid sparkling wine 'Grand Mousseux'. This label is bordered

Van Wyk J

by two lines, the outer one is thick and the inner one is thin. Inside the aforesaid border on the upper portion of the label is depicted an ovalshaped frame formed by what appears to be a patterned chain of grapes and leaves. Inside the oval is a vineyard and a building, with a mountain in the background. In the foreground is a part of a tree A bisecting a portion of the oval. Immediately underneath this oval the words 'Maison Libertas' appear in small print. In the lower portion of the label there are the words 'Grand Mousseux' written in old English lettering, and immediately underneath these words appears in small print B 'The Stellenbosch Farmers' Winery (Pty.) Ltd.' The label actually used by the applicant has the words 'London Gold Medal 1947. 1949. 1950' in very small print above the aforesaid oval, and underneath the words 'Stellenbosch Farmers Winery Ltd.' there appear in even smaller print the words 'Oude Libertas Stellenbosch'. The colouring is black on white save that the broad border and the oval frame is in gold.

C The presentation or get-up of the bottles in which applicant sells and markets its products includes, in addition to the aforesaid label, the following: the bottle is stoppered with a Champagne cork which is held in position by wire, the cork and wire are covered with white foil upon D which there are speckles of gold, and this foil reaches well down to the neck of the bottle. At the base of the foil and just above the shoulders of the bottle there is a neck label bearing the words 'Grand Mousseux' and other words descriptive of the type of sparkling wine contained in the particular bottle. The aforesaid get-up has been used by the applicant in the marketing of 'Grand Mousseux' sparkling wine E since the year 1924. About £18,000 per annum is spent on advertising this brand, and the sales of 'Grand Mousseux' constitute about 50 per cent of the total sales of sparkling wine in the Union. Applicant's aforesaid get-up has acquired a distinctiveness or reputation with the public.

In or about May 1955 Mr. S. Blumberg, a director of the respondent F Company, had an interview with one Alexander Drake, a commercial designer of Cape Town. Inasmuch as Mr. Drake's version of the interview is not admitted by the respondent, I now quote an extract from respondent's affidavit in regard to what occurred:

'What actually happened was that I brought to Mr. Drake a 'Grand Mousseux' bottle label, and placed this before him. I told Mr. Drake that I wanted him to design for me a 'more classy' label. I pointed out G to Mr. Drake that I wanted the Stellenvale Homestead as the central feature and I thought an oval would be the best means of featuring it. I specifically stated that the design must be different from that of the 'Grand Mousseux' label. I particularly emphasised that I wanted the name 'Chamblanc' to be most prominently displayed. In this respect, I consider that Mr. Drake fulfilled my instructions, as is apparent from a proper inspection of the two labels in question (annexures 'D' and 'E') to which I respectfully refer the Court.

As previously explained in this affidavit, I had decided that I wanted H the feature of the Homestead and vines to be the central feature of the label as against the statue of Bacchus - one of these two features have been displayed on my labels. I had also decided to retain in the 'Chamblanc' label the feature of white background with black and gold, in accordance with the other labels which I had in similar colour design. I mentioned these facts to Mr. Drake at the time. In regard to the width of the border, Mr. Drake asked me what width I required, and I said that I would leave it to his discretion, as this aspect was in no way distinctive.'

Van Wyk J

Mr. Drake completed a draft label in accordance with the instructions received by him and this label was apparently subsequently taken to a Mr. Vincent Doyle, a printing sales representative employed by the Cape Times. Mr. Doyle states that his firm was asked to quote for the printing of two labels, the one was for sparkling wine bearing the name A 'Chamblanc', and the...