Unfair Trade Competition, Copyright Infringements, Trademark Infringements, Passing Off and Restraint of Trade

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L
Ruled By: UCHENA J

The applicant is a company duly incorporated in terms of the laws of Zimbabwe. It carries on the business of electrical engineering. The first respondent was its employee. He was its Chief Executive Officer. He tendered his letter of resignation on 8 February 2010.

The second respondent is the first respondent's company duly registered in terms of the laws of Zimbabwe. It, like the applicant, carries on the business of electrical engineering.

In terms of clause 16.1 of the applicant and first respondent's contract of employment the first respondent is restrained from competing with the applicant. Clause 16.1 provides as follows:

“You are required to devote your attention at work to the affairs of A C Controls. You may not be involved, either directly or indirectly, during or after business hours, in any undertaking that is adverse to, prejudicial to or competing with the interests of A C Controls. All business interests must be declared at commencement of this appointment, and approval for subsequent outside business interest must be obtained from the Chairman.”

The first respondent, believing he had resigned and was no longer bound by clause 16.1, on 8 March 2010, wrote to Netone, on behalf of the second respondent, seeking to be put on its contractors list.

The request was brought to the applicant's attention by Netone. Net One is the applicant's client. The first respondent, in his capacity as the applicant's CEO, used to communicate with it on the applicant's behalf.

The applicant, believing the first respondent was still its employee, filed this application to stop the first and second respondents from competing with it. It sought a provisional order on the following terms:

“(a) That the first and second respondents are hereby interdicted from engaging in any business in competition with the applicant.

(b) That the first and second respondents are barred from providing any service to Netone.”

The applicant's counsel submitted, that, the second respondent, though not the applicant's employee, is being sued on the understanding that it is the first respondent's alter ego.

The respondents opposed the applicant's application, raising the defence, that, the first respondent is no longer the applicant's employee, as he resigned from its employment on 8 February 2010.

This case depends on the interpretation of clauses 16.1 and 23.4 of the applicant and the first respondent's contract of employment, and the determination of whether or not the first respondent's letter of resignation, dated 8 February 2010, terminated the employer/employee relation which existed between the applicant and the first respondent.

Counsel for the applicant submitted that clause 16.1 is still binding between the applicant and the first respondent because the first respondent, in spite of the purported resignation, is still the applicant's employee. He argued that the unilateral resignation violates the terms of clause 23.4 of the contract of employment which reads as follows;

“Where neither party is in breach, but termination is desirable, this shall be settled by mutual agreement.”

Counsel for the respondents submitted, that, the relationship between the applicant and the first respondent was terminated by the first respondent's letter of resignation. He further submitted, that, resignation is a unilateral act which need not be accepted by the employer. He further submitted that there was breach of contract which led to the first respondent's resignation.

Clause 16.1and 16.2

Clause 16.1 clearly deals with a situation where the employee is still in the employer's employment. It does not extend to a period after the employee's resignation.

Once the employer/employee relationship has come to an end it ceases to be of any effect.

Counsel for the applicant sought to argue, that, the first respondent is a director of the applicant and a shareholder of its subsidiary, and is therefore, by virtue of those positions, still barred from competing with the applicant.

That argument is not tenable.

It does not fall within the terms of clause 16.1 and 16.2, and the first respondent's acceptance of those positions has not yet been agreed.

In his letter of resignation, the first respondent sought to be informed of the terms on which he was being offered those positions. This means there is no agreement on those positions. The applicant's argument cannot succeed because clause 16.1 does not restrain trade for the first respondent's directorship or his being a shareholder of the applicant's subsidiary, and, the agreement between the parties on these appointments has not yet been finalized.

Clause 23.4

The applicant's counsel submitted, that, this clause was not breached, and because there was no breach therefore the applicant's letter of resignation did not terminate the contract of employment.

Counsel for the respondents submitted, that, the first respondent's letter of resignation clearly states that there was breach of contract and specifies the aspects of the contract which were breached. He, on p1 of the letter of resignation, said;

“I also indicated that the current revenue base does not allow the company to pay for my family's (immediate and extended) needs and basic survival. Since October 2009 I had to liquidate family assets to survive. I should underline that I have no ill feelings on the company for this situation. The business environment dictated the present situation.”

The letter of resignation is complaining of the applicant's failure to meet its contractual obligations. The fact that he says he understands the underlying reasons for the breach does not mean that there was no breach.

In the circumstances, the applicant breached the first respondent's conditions of service, resulting in his having to liquidate his family assets to survive. The applicant cannot, in these circumstances, be heard to say that there was no breach and the first respondent had to resign by mutual agreement in terms of clause 23.4. The first respondent was entitled to resign in the manner he did because there was a breach of contract by the applicant.

Notice

The first respondent resigned without giving the applicant notice. He, in paragraph 4 of his opposing affidavit, states:

“I am no longer an employee of the applicant company since I resigned from my post as its Chief Executive Officer on the 8th of February 2010, and the applicant's representative had knowledge of the resignation as from the 9th February 2010.”

The letter of resignation, in the first paragraph, states:

“I hereby formally advise that I am resigning from the position of Chief Executive of A C Controls with effect from 8 February 2010.”

The letter is dated 5 February 2010, and the first respondent says the applicant's representative became aware of it on 9 February 2010.

There was therefore no notice at all, and this was a unilateral termination of the contract of employment.

If a contract of employment can be terminated unilaterally the first respondent is now free to compete with his former employer, the applicant, as clause 16.1 is restricted to the period during which he was under the applicant's employment. On the other hand, if a contract of employment cannot be terminated unilaterally then the first respondent is still the applicant's employee and cannot compete with his employer, the applicant, until the contract of employment is properly terminated.

The Resignation

Counsel for the respondents submitted, that, resignation is a unilateral act which entitles the employee to terminate the contract of employment without the consent of the employer. Counsel for the applicant submitted, that, resignation does not terminate the contract until it is accepted by the employer.

I agree with counsel for the respondents submission, that, an employee's resignation unilaterally terminates the contract of employment. His submission is supported by the decision of this court in the case of Muzengi v Standard Chartered Bank & Anor 2000 (2) ZLR 137 (HC) where it was held, that, a letter of resignation constitutes a final act of termination by an employee, the effects of which he cannot avoid without the permission of the employer.

This means, once the employee tenders a letter of resignation to his employer, the contract of employment is terminated as the employer cannot refuse to accept his resignation, but can only agree to the employee's withdrawal of his resignation if he is inclined to doing so. The employer can, however, institute a claim for the damages he may suffer as a result of the employee's resignation without giving him adequate notice: see also the case of Mudakureva v Grain Marketing Board 1998 (1) ZLR 145 (SC) where the Supreme Court confirmed the finality of a letter of resignation pointing out that the employee could only have avoided it by proving that the employer forced him to resign, and thereby turning it into a constructive dismissal.

In the result, the first respondent's unilateral resignation terminated the contract of employment which existed between him and the applicant.

In view of the termination of the contract of employment, the first respondent is no longer bound by clause 16.1 of the contract of employment. It therefore follows, that, the second respondent, whom the applicant sought to restrain on the basis of its being the alter ego of the first respondent, cannot be bound by a contract which no longer binds the first respondent.

The applicant's application is therefore dismissed.

The applicant shall pay the respondent's costs.

HH150-09 : SOUTHBAY REAL ESTATE (PVT) LTD vs SOUTHBAY PROPERTIES (PVT) LTD and G RATISSO and CHIEF REGISTRAR OF COMPANIES
Ruled By: MAKARAU JP

On 7 January 2009, the applicant filed this application seeking an order compelling the first respondent to change its name within six weeks of the granting of the order.

In its founding affidavit, the applicant averred that it was duly registered by the third respondent on 26 October 2006. On 12 November 2008, it came to its attention that the third respondent had registered the first respondent, whose name is identical to its own.

The applicant further averred, that, on 14 November 2008, it wrote to the third respondent objecting to the registration of the first respondent on the basis that their two names were identical and pointing out that the first respondent's main line of business was also real estate.

No response was elicited by this letter, although, in consequence to a follow up on the letter, the third respondent wrote to the first respondent bringing to its attention the objection and the basis of the objection and gave a copy of this letter to the applicant.

In opposing the application, the second respondent deposed to an affidavit on behalf of the first respondent and also on his own behalf.

In the affidavit, the first respondent indicated, by way of giving a historical background to the dispute, that, as far back as 2001, the promoters of the first respondent had registered a company by the name Southbay Investments (Private) Limited. The promoter was therefore the first to use the prefix “Southbay”.

In 2006, the applicant changed its name from Vineyard Real Estate to its current name with the full knowledge of the existence of Southbay Investments (Private) Limited. Objections were raised to the proposed change of name to no avail.

Regarding the merits of the application, the first and second respondents argued that the applicant did not have goodwill in the name “Southbay”; denied that the first respondent had misrepresented to the public or caused any confusion in the public as to the distinction between the two companies as the first respondent was not trading as a real estate agency and had made no moves to be registered as such with the Estate Agents Council; finally, the respondent argued that there is a big difference between the two companies such that the public will not be confused by the two registrations.

In the main, the second respondent argued that since it was incorporated as a subsidiary to Southbay Investments (Private) Limited, it was not meant to carry out real estate business but to manage the property portfolio of the parent company.

The third respondent did not oppose the application....,.

I now turn to the merits of the application.

Section 24(2) of the Companies Act [Chapter 24:03] provides:

“No name shall be reserved and no company shall be registered by a name which is identical with that for which a reservation is current or with that of a registered company or a registered foreign company or a private business corporation registered under the Private Business Corporations Act [Chapter 24:11] or which so nearly resembles any such name as to be likely to deceive unless the registered company or registered foreign company or private business corporation, as the case may be, is in liquidation and signifies its consent to the registration in such manner as the Registrar may require.”

The applicant argues, firstly, that the registration of the first respondent was unlawful as it was done in contravention of this section. In other words, the applicant is arguing that the third respondent erred at law in registering the first respondent in contravention of the specific language used in the section.

In my view, once the Registrar makes a decision to register a name in terms of the Companies Act, such an exercise, being a juristic act, cannot be impugned by this court save by way of an appeal in terms of section 24(11) of the Companies Act or by way of review at common law.

It is trite, in my view, that the registration of names in terms of the Companies Act is a function in the exclusive discretion of the third respondent: such discretion to be exercised not only in terms of the guidelines set out in the Companies Act, but also judiciously. It is thus a quasi judicial exercise that confers not only corporate status on the company so registered but also creates a new legal persona.

Thus, the decision by the third respondent is not one that can be set aside by this court exercising its own discretion in the matter outside the appeal process set out in the Companies Act and/or outside the inherent powers of this court to review and set aside, in appropriate cases, decisions of inferior tribunals and quasi-judicial authorities.

The application before me is neither an appeal in terms of section 24(11) of the Companies Act nor a review at common law. I therefore cannot set aside the decision of the Registrar on any ground outside the above two processes.

It has not been argued before me that a registration in contravention of the section is void ab initio such that any person can approach this court for the registration to be set aside: see Musara v Zinatha 1992 (1) ZLR 9 (H).

It does not appear to me that it was the intention of the legislature to deem void a registration in violation of the section 24(2) of the Companies Act [Chapter 24:03]:

(i) Firstly, there is no clear language to this effect in the law.

(ii) Secondly, the law provides processes and remedies for redressing grievances arising out of registrations done in contravention of the section.

On the basis of the above, I decline to determine this issue in the present application.

Secondly, the applicant argues, that, in seeking an order from this court to compel the first respondent to change its name, it has approached this court not under the common law of passing off but under the provisions of section 24(13) of the Companies Act which provides that:

“(13) The court may, at any time, on application by any person, order a company to change its name within such period as may be specified by the court on the grounds that the name of the company —

(a) Is likely to mislead the public or gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public; or

(b) Is likely to cause damage to any other person.”

The principles of the law of passing off are well settled in my view. They seek to protect business from unfair competition where one business entity seeks to feather its nest from the goodwill and reputation built up by the plaintiff business enterprise through confusing the public.

The requirements of the delict were well researched upon and discussed by GILLESPIE J in FW Woolworth & Co (Zimbabwe) (Pvt) Ltd v The W Store and Another 1998 (1) ZLR 93 (HC) where…, he describes the delict in the following terms:

“The wrong known as passing-off consists in a representation by one person that his business (or merchandise, as the case may be) is that of another, or that it is associated with that of another, and, in order to determine whether a representation amounts to a passing off, one enquires whether there is a reasonable likelihood that members of the public may be confused into believing that the business of one is, or is concerned with, that of another: per RABIE JA in Capital Estate & General Agencies (Pty) Ltd & Ors v Holiday Innes Inc & Anor 1977 (2) SA 916 (A) at 929.

The 'representation' referred to may be any act by one trader that is calculated to deceive or cause confusion between his goods or business and those of a rival. The act might include the adoption of a trademark, a get-up, or any distinguishing sign or slogan. Where a trader does use a mark so closely resembling that of another as is calculated to cause confusion, 'a trader may be held to have impliedly represented that his goods are those of his rival or that they are connected in some way with his rival. If such conduct causes or is calculated to cause his rival damage, either in the form of diversion of custom or damage to or misappropriation of his goodwill, then the delict of passing-off is committed…,.:' per CORBETT CJ in Royal Beech-Nut (Pty) Ltd v United Tobacco Co Ltd 1992 (4) SA 118 (A) at 122D.”

See also Kellogg Co v Cairns Foods Ltd 1997 (2) ZLR 230 (SC).

In my view, the statutory remedy of compelling a competitor company to change its name under section 24 of the Companies Act is akin to but not the same with the delict of passing off.

The right to protect a name under the delict of passing-off arises only when the name has acquired a reputation. Thus, it is a requirement, under the delict, for the applicant to establish a reputation or goodwill in the name.

It appears to me that, under the statute, all that the applicant needs to prove is that the respondent's name is likely to mislead the public or gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public or is likely to cause damage to any other person.

My reading of the section is that such an applicant need not prove that it has a reputation or goodwill or a clientele that will be confused by the similarities in names. The emphasis of the section appears to me to be the protection of the public from being misled rather than the protection of the applicant company's good name and business against competition.

I am fortified in my belief by the wording of section 24(13) of the Companies Act [Chapter 24:03] which gives the right to any person to approach the court to compel a change of name on the grounds listed in the section.

In my view, in terms of the section, a member of the public could approach the court under the section.

Now, it would be absurd to require such an applicant to satisfy the requirements of a passing off action by showing that they have a reputation or goodwill to protect.

It is on the basis of the above that I do not agree with counsel for the respondents submission that the applicant cannot succeed because it did not show that it had goodwill in the name sought to be protected.

In casu, the plaintiff has argued that the similarities in names between the applicant and the first respondent are such that the public will be misled into believing that one is the other.

I tend to agree.

The two names have the same root name “Southbay.” This is not a common name in this country as it does not denote a place, a location, or anything familiar with the populace. It is an alien name which can only be recognized in connection with the business connected to it. Both companies are in the real estate business and the public are likely to confuse one for the other. The situation may have been different had the two companies been in very disparate businesses such that one would stand alone distinctly from the other.

In defence of the registration of the first respondent, counsel for the respondents has also submitted that the registration is unlikely to mislead as the first respondent is not registered to deal with the public but to manage the property portfolio of it parent company. In this regard, he relied on the fact that the first respondent has not sought to register with the Estate Agents Council and has not traded with the public.

In a passing off action, it is yet another requirement of the delict that the public be misled to such an extent that they mistake one business venture for the other and take away the business of the reputation-holder to the imposter.

I do not read such a requirement in section 24(13) of the Companies Act. I do not even think that such a requirement is necessary.

As I have pointed out above, it appears to me that the section is primarily enacted for the protection of the public. Thus, if it is proved that the public is likely to be misled, the application to compel the respondent should succeed even if the respondent has no intention of engaging the public.

In casu, I hold that the public is likely to be misled because the respondent has actually placed a notice with its name in the street, outside its offices in the city centre. This can only be for the information of the public for its holding company requires no such notice of its existence.

On the basis of the foregoing, I am of the view that the registration of the first respondent is likely to mislead the public and must be changed.

In the result, I make the following order:

1. The first respondent be and is hereby ordered to change its name within six (6) weeks of the date of this order.

2. The first respondent shall bear the applicant's costs.

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

I have had the privilege of acquainting myself with the cases which influenced my brother judge CHEDA J's decision in Chafanza v Edgars Stores Ltd Anor 2005 (1) ZLR 301 (H). The cases of Pretoria Bill Resting Co. v Hess 1911 TPO 360 and Smith v Hannock (1894) 2 CR 0377 (CA) ...

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU
Ruled By: HUNGWE J

This matter was placed before me through the Chamber Book as an urgent application on March 10, 2008. The applicant seeks the following provisional order against the respondent:

“Pending confirmation or discharge of this Provisional Order;

1. The respondent be and is forthwith hereby interdicted and restrained from using the applicant's name and materials and posters resembling the applicant's materials and posters in his campaign for the House of Assembly seat of Mabvuku-Tafara.

2. The respondent be and is hereby ordered to forthwith remove the posters he plastered in and around the Constituency, failing which the applicant's structures in Mabvuku-Tafara Constituency be and are hereby authorised to remove the said posters in the company of the Deputy Sheriff or members of the Zimbabwe Republic Police, if necessary.

SERVICE OF THE PROVISIONAL ORDER

This Provisional Order shall be served by the respondent by the applicant's Legal Practitioners or the Deputy Sheriff of Chinhoyi. (sic)”...,.

The applicant is a registered political formation in terms of the laws of Zimbabwe.

The respondent is the outgoing Member of the House of Assembly for the Mabvuku-Tafara constituency for the applicant. The applicant has fielded hundreds of candidates in the forthcoming harmonised Presidential, Senatorial, Parliamentary and Council elections. In an internal candidate selection process, the respondent failed to garner the support of his political party to stand as that party's chosen representative for the House of Assembly seat of Mabvuku-Tafara constituency. Instead, one Shepherd Madamombe is the official candidate for the applicant.

The applicant approaches this court for the above relief.

Sekai Holland, the applicant's Secretary for Policy Research and Ideology, deposed to the founding affidavit.

In it, she states that the applicant, on 14 February 2008, notified the Zimbabwe Electoral Commission of its intention to substitute the respondent with Shepherd Madamombe.

On 15 February 2008, the Nomination Court sat to receive the nomination of candidates. Shepherd Madamombe's papers were accepted as representing the applicant. The respondent, who had earlier been endorsed by the applicant, also filed his nomination papers - but as an independent. His papers were accepted by that Court as such.

The applicant now seeks to interdict the respondent from conducting his campaign using its materials and posters.

This application has been brought to the wrong Court.

The Nomination Court is the proper court to decide the eligibility of each candidate.

Once it was satisfied that a candidate is eligible to be registered, and registered him, then it was up to the applicant to deal with the question of use of its materials in terms of its internal disciplinary procedures, if any was applicable.

The applicant does not say, in its papers, that the respondent is no longer its member.

If he is, then all the more reason this matter should have been dealt with internally. There is no evidence to suggest that all internal remedies had been exhausted by the applicant nor is there an averment that the respondent has been expelled from that party so as to require the adoption of conflict management mechanisms available in terms of Part XX1A of the Electoral Laws Amendment Act Number 17 of 2007.

Assuming in favour of the applicant, that, once it had accepted a candidate's nomination, the Nomination Court and the Electoral Court had no role to play in respect of how candidates conducted their campaigns, I am unable to hold that this is not self-created urgency.

The applicant, by it own admission, approved the candidature of the respondent in the impending election.

I also must assume that in preparation for the election campaign, it incurred all the expenses usually associated with a national election, like printing materials and posters for use by its candidates, and generally making its political manifesto public.

It would have appropriately armed such of its candidates as it had settled upon. This included the respondent.

The papers do not show that upon request for the return of such material, the respondent had refused.

The applicant has already incurred such cost as are incidental to the running of its campaign.

I am unable to point to what extra harm or prejudice the applicant would suffer from allowing one of its own to continue with that campaign.

From the papers, the applicant, at some point, recommended the respondent to the Nomination Court. It sought to withdraw this recommendation “at the door of Court” so to speak - and succeeded. The respondent had, in all probability, prepared his personal campaign materials for the job at hand. To interdict him on the present papers, in my view, would result in more harm to an otherwise properly laid campaign course.

In any event, it seems to me that this Court cannot grant, on an urgent basis, relief that will, in effect, limit an election candidate's entrenched constitutional right to political activity.

There is no evidence, on the papers, that he has breached the country's criminal laws, or that his conduct, on the face of it, will create or occasion a breach of the peace. The applicant, without more, cannot succeed in securing, by an order of court, a curtailment of lawful political activity.

Section 21 of the Constitution guarantees a private citizen's freedom of association and assembly. This right, like any other right, is subject to lawful limitations which place a duty upon such citizen not to act in a manner that infringes other citizen's rights. Section 21 of the Constitution of Zimbabwe accords with Article 13 of the African Charter on Human and Peoples' Rights and the general tenor of Article 22 of the International Covenant on Civil and Political Rights.

Further, the likely prejudice which a political party suffers in such circumstances, as obtain in the present case, is far outweighed by the need to protect and promote the right in question. It is a right that supersedes any prejudice the applicant may lawfully lay claim to.

Generally, passing-off, as applicable in commercial disputes, involves unfair trade competition.

I do not agree, with respect, that a political party can claim successfully that one of its members is passing-off when such member uses that party's political campaign material for the furtherance of the party's common political objective.

It seems to me the better approach is to promote the right which serves the principle of democratic participation of the wider public in the running of their affairs than to stifle such participation by way of court interdicts as sought here.

In the result, I remove the matter from the roll of urgent matters.

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].

The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant was wholly owned by the directors of the first respondent.

In about 2007, the then directors of the applicant sold their entire shareholding in the applicant to the applicant's current directors, viz Mohamed Zakariya Patel and Daud Isa Patel. The business was sold as a going concern.

The parties also concluded a restraint of trade agreement wherein it was agreed that the former shareholders would, for a period of five years, not engage in any school uniform manufacture and retail in competition with the applicant.

The applicant continued trading from the premises under a five year lease agreement.

Subsequently, the parties got embroiled in several acrimonious legal battles whose culmination was the conclusion of an out of court settlement on 30 October 2012 which was imbued with a Magistrates' Court order – annexure “B”.

Pursuant to paragraph 1 of the consent order, the applicant vacated the premises on 31 January 2014 and handed over the premises to the first respondent.

Upon retaking possession of the premises, the first respondent immediately put on display in the shop windows various types of uniforms for different schools in alleged direct contravention of the terms of paragraph 5 of the consent order, annexure “B”.

That paragraph 5 reads as follows:

“5. The plaintiff [1st respondent herein] shall not, directly or indirectly, after 31st January 2014, and on the entire property described in paragraph 1 above, sew and/or sell school wear and/or raw materials thereof or school related products for a period of 5 years from 31 January 2014….,.”

Alarmed by this development, the applicant's legal practitioners wrote a letter to the first respondent protesting at the unlawfulness of its actions and demanding that it removes the displayed uniforms from the shop windows.

This letter was responded to by the fourth respondent, on behalf of the first respondent, on 6 February 2014 stating, inter alia, that, they were only displaying the uniforms and not selling them so therefore there was no contravention of paragraph 5 of the consent order.

The applicant, however, contends that the real reason for displaying the uniforms is that across the road from the premises there is a shop called Totally Uniforms owned by the second respondent which is conducting the business of retailing school uniforms.

The second respondent is wholly owned by the directors of the first respondent.

What happens is that if a customer enters the premises enquiring about the displayed uniforms, the first respondent's staff refers the customer to Totally Uniforms across the road to buy. This, according to the applicant, amounts to the first respondent directly and indirectly manufacturing and selling school uniforms in breach of paragraph 5 of annexure “B”.

Further, the applicant contends, the premises are well known and generally associated with the manufacture and sale of school uniforms of virtually all schools in Bulawayo and the Matabeleland region if not throughout the country. The mention of the name Toppers is naturally linked to the premises. The name Totally Uniforms is displayed boldly and prominently in red on the second respondent's premises. The name somewhat resembles the applicant's trading name, Toppers Uniforms.

What the respondents are doing is all intended to hoodwink the school uniform buying public into thinking that the applicant is still operating from the premises and that the second respondent is somehow associated with the applicant – some form of passing off.

The foregoing is the reason why the applicant filed the urgent chamber application whose interim relief sought is:

“Pending the finalization of this matter, applicant is granted the following interim relief:

1. 1st, 3rd, 4th and 5th respondents be and are hereby ordered and directed to remove all school uniforms and any other type of school wear on display in the shop windows of or anywhere inside the premises formerly known as Toppers Building situated at 129A Fort Street/13th Avenue, Bulawayo.

2. 1st, 2nd, 3rd, 4th and 5th respondents be and are hereby interdicted and prohibited from manufacturing, selling, and advertising for sale in any manner whatsoever including referring customers to 2nd respondent any school wear, raw materials, or any school related products from the aforesaid premises.”...,.

Now, regarding the merits, the requirements for the granting of a temporary or interim interdict are trite. They are that:

1. The right sought to be protected is clear; or

2.(a) If it is not clear, it is prima facie established, even though open to doubt; and

(b) There is a well-grounded apprehension of irreparable harm if the relief is not granted and the applicant ultimately succeeds in establishing his right; and

3. The balance of convenience favours the grant of the relief; and

4. There be no other satisfactory remedy.

See Enhanced Communication Network (Pvt) Ltd v Minister of Information, Posts & Telecommunications 1997 (1) ZLR 342 (HC).

I am satisfied, in casu, that, from a reading of paragraph 5 of annexure “B” as read with what the applicant alleges the respondents are doing (which the respondents have not meaningfully challenged – in fact, the fourth respondent's letter on behalf of the first respondent does not at all dispute the display of school uniforms at the premises), the right sought to be protected is quite clear, let alone prima facie established, and a well-grounded apprehension of irreparable harm is exitant if the relief is not granted.

Two legal concepts arise from the applicant's allegations, namely, breach of restraint clause agreement and passing off.

Regarding restraint of trade, the respondents' interpretation of paragraph 5 of annexure “B” is too simplistic and narrow.

They say paragraph 5 of annexure “B” restrains sale of school uniforms but they are only displaying and that is not selling.

From what the applicant is alleging, there will be need for the court to invoke the Mischief of Rule of statutory interpretation in order to get behind the mischievous smoke screen created by the respondents.

The respondents surprisingly remained mum on why they would indulge in displaying those school uniforms in the display windows if they are not doing so for sale. What benefit would they derive out of that? Certainly, the likelihood of fooling the general public into thinking that the applicant is still operating from the premises, to its irreparable financial prejudice, having paid $300,000 for goodwill when purchasing the business, cannot be discounted.

The CR14 produced by counsel for the respondents shows that the fourth respondent is a common denominator as he is also a director of the first respondent. It has not been disputed that the fourth and fifth respondents are directors of the first respondent who also wholly own the second respondent.

So, the contention that some of the respondents cited in this application were mis-joined is a lame duck.

In Saybrook (1978) (Pvt) Ltd and Anor v Girdlestone 1986 (2) ZLR 185 (SC) the court held that it must be satisfied, in respect of passing off, that the conduct complained of is calculated to pass-off other goods as those of the complainant or at least to produce confusion in the minds of probable customers as would likely to lead to the other goods being bought for the complainant's.

In casu, the conduct complained of by the applicant seems to have that likelihood.

Regarding the balance of convenience, it clearly favours the grant of the relief sought.

The respondents stand to lose nothing if the relief is granted, if they are surely not embarking upon the conduct complained of; while, on the other hand, if the relief is refused, the applicant would suffer immeasurable financial prejudice that is difficult, if not impossible, to quantify.

I have already dealt with the fourth requirement, relating to absence of satisfactory remedy, above so it should not detain me by regurgitating it.

In the result, I am satisfied that the applicant has succeeded in establishing the requirements for an interim interdict. The application is accordingly granted with costs.

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD
Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

Alleging trademark infringement, the appellant brought an application to the High Court (the court a quo), in terms of section 9A(2) of the Trade Marks Act [Chapter 26:04] against the respondent. What was sought was an interdict against the use of the offending mark and ancillary relief.

On 23 October 2019, the court a quo handed down judgment dismissing the application with costs.

This appeal is against that whole judgement of the court a quo.

FACTUAL BACKGROUND

The appellant and the respondent are companies registered in Zimbabwe and involved in the business of producing and marketing food products. In particular, they are both in an endeavour of packaging and retailing fruit jam. On 10 October 1995, the appellant successfully registered the word “SUN” with device of various fruits under it as its trade mark for fruit jam.

The certificate of registration issued by the Registrar of Trademarks reads in part;

“The Trade Mark shown above has been registered in Part A of the Register in the name of CAIRNS FOODS LIMITED, a Zimbabwean company, of Upton Road, Ardbennie, Harare, in Class 29 under No. 1479/95 as of the 10th October 1995 in respect of jams.

Registration of this trade mark shall give no right to the exclusive use of the device of various fruits except in the precise relation and association on the representation hereon.”…,.

From then, the appellant has continued to use the mark on its package of “sun jam.”

On 9 March 2011, the respondent also successfully registered its own trademark which consists merely of the words “ROYAL SUN.” It has no fruits and sun devise accompanying it.

The respondent's own certificate of registration reads in relevant part thus;

“The Trade Mark shown above has been registered in Part A of the Register in the name of Netrade Marketing (Private) Limited, a company incorporation according to the laws of Zimbabwe whose legal address is No.23 Kenilworth Road, Newlands, Harare, Zimbabwe in Class 29 under no. 288/2011 as of the 9th March 2011 in respect of meat, fish, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, jellies, jams, compotes, eggs, milk and milk products, edible oils and fats.

Registration of this mark shall give no right to the exclusive use of the word 'ROYAL' separately from the mark.”…,.

In its business venture, the respondent also packages and markets fruit jam.

For purposes of putting that product on the market, the respondent came up with a logo or appellation containing its trademark 'Royal Sun' with a variety of fruits under it and the words 'Mixed Fruit Jam' at the bottom of it all.

I mention, in passing, that, the said logo is not registered as part of the respondent's trade mark apart from the words “Royal Sun.” It is, however, common cause, that, its mixed fruit jam is marketed under that logo.

It is the use of the logo, together with the respondent's registered trademark 'ROYAL SUN' which irked the appellant.

PROCEEDINGS IN THE COURT A QUO

The appellant filed an application in the court a quo on 7 August 2017. The application was made in terms of section 9A(2) of the Trademarks Act [Chapter 26:04] for an interdict against what it regarded as an infringement of its trade mark by the respondent. It also sought to interdict the respondent from passing off its products as those of the appellant by the use of a trademark or words nearly resembling the appellant's trade mark registration number 1479/95.

The appellant's case was that it has been marketing its fruit jam under the word 'Sun' and the device mark for over fifty (50) years. As a result, it has secured and acquired reputation and goodwill for its sun jam. According to the appellant, the respondent started promoting and selling its fruit jam under the name 'ROYAL SUN' thereby causing confusion.

As proof of such confusion, the appellant cited a case in which one wholesaler which distributes the appellant's sun jam product mistakenly placed the respondent's royal sun jam in its catalogue promoting the appellant's sun jam. To the appellant, this was enough proof that the packaging of the two products is strikingly similar.

It is on that basis that the appellant alleged a trademark infringement.

Regarding the delict of passing-off, the appellant's case was that its 'SUN' mark is distinctive, has been in use for over fifty (50) years, and, as such, it is well known to members of the public. Having gained a lot of goodwill, which the respondent is riding on, a case of passing off was made. In the appellant's view, the use of 'ROYAL SUN' is calculated to deceive the transacting public, cause confusion and injury to the goodwill.

In opposing the application, the respondent's case was that having registered its trademark in Class 29 under number 288/2011 in respect of jams and other goods, such registration was of full force and effect. It entitled the respondent to use the registered trade mark, and, as such, it could not be interdicted from doing that which is permitted by law.

Further, the respondent insisted, that, it has been marketing a broad range of products under its 'ROYAL SUN' get up. Its goods are well recognised throughout the country. Jam was only added into the mix later as there was no desire to set up a new mark for only jam.

In any event, so the respondent argued, its mark is distinct from and cannot possibly be confused with that of the appellant as the visual get up of its mark is very distinct from and cannot possibly be confused with that of the appellant. Consumers cannot be deceived or confused.

The respondent insisted, that, there was no likelihood of confusion created in the mind of customers, because, unlike the appellant, it uses its logo on a wide range of products. The customers are very familiar with its products and know very well they do not originate from the appellant.

FINDINGS OF THE COURT A QUO

The court a quo undertook a comparison of the two marks. It found that the respondent's mark is the words 'ROYAL SUN' which extends to jams while that of the appellant is “a representation or a design.” For that reason, the court a quo reasoned;

“…, it is apparent that the parties respective trademarks are far from identical neither does the respondent's mark so nearly resemble applicant's registered trade mark as to be likely to deceive. Clearly, the applicant's mark is a design while the respondents mark are the words 'ROYAL SUN.'”

It was the court a quo's finding, that, the appellant had incorrectly pleaded “its causa” because there is no trade mark in respect of the word 'Sun' independently of the representation. In the court a quo's view, the appellant's trademark was not the word 'Sun'. What was registered as a trade mark was the representation or device and not the word 'Sun'.

The court a quo concluded, that, the appellant had failed to establish any infringement of its trademark.

Regarding passing off, the court a quo agreed with the respondent, that, the evidence of the wholesaler who mistook the respondent's royal sun jam for the appellant's sun jam could not be introduced in the answering affidavit.

It accordingly found, that, the appellant had failed to demonstrate any actionable passing off. That way, the application was dismissed with costs.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo and launched the present appeal on five (5) grounds, namely:

1. The court a quo erred and grossly misdirected itself in its finding that the appellant had only registered a representation or device and not the word SUN when in fact the appellant's mark consists of both the word SUN and a device/representation of fruits.

2. The court a quo erred at law in failing to consider that the dominant/distinctive feature of the appellant's mark is the word SUN and the respondent did not need to reproduce the appellant's trade mark as a whole for there to be a trademark infringement - the use of the word SUN in itself amounted to trade mark infringement.

3. The court a quo erred and grossly misdirected itself in its interpretation of the disclaimer on the appellant's mark when the appellant's claim pertained to the unauthorised use of the dominant part of its mark being the word SUN and not the representation of the fruits which was disclaimed.

4. The court a quo erred and grossly misdirected itself in its finding that the appellant had failed to prove that its mark had acquired goodwill and reputation when in fact the particulars of the reputation and goodwill were canvased in the appellant's founding affidavit and were not disputed by the respondent in its opposition.

5. The court a quo grossly misdirected itself in comparing the two logos of the appellant and the respondent when the appellant's claim was not about the respondent's logo but the use of the words Royal Sun.

These grounds of appeal zero in on one main issue for determination in this appeal: it is whether the court a quo erred and misdirected itself in making a finding that the respondent did not infringe the appellant's trademark.

Counsel for the appellant submitted, that, the court a quo misdirected itself by not applying the test used to determine the existence or otherwise of a trade-mark infringement as set out in the case authorities made available to it. Instead, so it was argued, the court a quo embarked on an unnecessary forensic examination of how the two trade marks looked like. In this process, the court a quo identified six (6) differences in the two thereby arriving at the erroneous conclusion that there was no infringement.

It was further submitted on behalf of the appellant, that, the court a quo was under the mistaken view that the word 'Sun' was not a registered trademark and concerned itself with the design accompanying that word. In counsel's view, the true nature of a trade mark goes beyond the design but encompasses the word 'Sun' as well.

Counsel for the appellant went on to submit, that, regarding passing off, all its requirements were established in this case. This was moreso regard being had that the same product marketed by the appellant under its registered trade mark, that is fruit jam, was being sold by the respondent under a confusing and deceptive banner. The appellant had shown that goodwill of its product had been acquired over a lengthy period. There was also evidence of confusion created by the respondent's use of a strikingly similar name and logo for its own jam.

Per contra, counsel for the respondent submitted, in the main, that, the respondent was not guilty of un-authorised use of a registered trade mark. Quite to the contrary, the respondent registered its own trademark and used it lawfully. Once the 'Royal Sun' trade mark was registered, the respondent was lawfully entitled to its use in its business endeavour.

It was therefore incompetent, so it was argued, for the appellant to seek to interdict the use of a registered trade mark because a court of law cannot interdict what is lawful.

Counsel for the respondent suggested, that, the appellant should have sought the remedy of the expungement of the offending trademark from the register of trade-marks. For that reason, the appeal ought to fail.

In addition, it was argued on behalf of the respondent, that, the word 'Sun' being generic in nature, cannot be subject of exclusive use unless it is used in a way that causes confusion.

According to counsel for the respondent, the appellant pleaded confusion on the part of customers when the Trade Marks Act talks of deception before an infringement could be said to exist.

In any event, there was no evidence of confusion.

It was submitted for the respondent, that, the two marks are not similar, and, as such, the notional customer cannot make a mistake between them. In counsel's view, the court a quo's decision should be upheld.

THE LAW

Perhaps the starting point in examining the law governing trademarks is the effect of registration itself.

A trademark is defined in the interpretation provision, namely, section 2 of the Trade Marks Act [Chapter 26:04] (the Act), in the following words:

“Trade mark means a mark which is used or proposed to be used in relation to goods or services for the purpose of:

(a) Indicating a connection in the course of trade between the goods or services and some person having the right either as proprietor or as a registered user to use the mark whether with or without any indication of the identity of that person; and

(b) Distinguishing the goods or services in relation to which the mark is used, or proposed to be used, from the same kind of goods or services connected in the course of trade with any other persons, but, does not include a certification mark.”…,.

In terms of section 5(4) of the Trademarks Act, the register of trade marks is prima facie evidence of any matter required or authorised by or under the Act to be entered therein.

In resolving the dispute between the parties, therefore, the contents of, and what appears in the register, is critical.

The provision governing infringements of trademarks is section 8(1) of the Trade Marks Act [Chapter 26:04] which reads;

“(1) Subject to this section and sections ten and eleven, a registered trade mark shall be infringed by any unauthorised use in the course of trade, whether as a trademark or otherwise of a mark that is identical to the registered trade mark or so nearly resembling it as is to be likely to deceive or cause confusion, where that mark is used in relation to the same or similar goods or services as those in respect of which the trade mark is registered.”…,.

Subsection (3) of section 8 makes it clear, that, the right to the use of a trade mark given by registration in Part A or Part B of the Register shall be subject to any conditions or limitations entered on the Register.

The application before the court a quo was made in terms of section 9A of the Trademarks Act. It provides for entitlement to and the nature of civil remedies for infringement in the following:

“(1) Subject to this Act, an infringement of a registered trade mark shall be actionable at the suit of the proprietor and any registered user of the mark.

(2) Subject to this Act, in any proceedings for an infringement of a registered trademark, there shall be available to the plaintiff all such remedies by way of damages, interdict, attachment, the rendering of account, the delivery of improperly marked goods or of articles used or intended to be used for marking goods or otherwise as are available in respect of the infringement of any other proprietary right.”

The provisions relating to trade mark infringement have been the subject of a number of judicial pronouncements in both this jurisdiction and South Africa. Generally, authorities are agreed, that, in infringement proceedings, what the court is required to do is to consider the notional use to which the party seeking to enforce registration puts its trademark and protect the monopoly created by the terms of registration: see Bata Ltd v Face Fashions CC & Anor 2001 (1) SA 844 (SCA).

The test for infringement was eminently stated in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)…, relied upon by counsel for the appellant in advancing the argument that there exists the likelihood of deception or confusion. The court stated:

“…, a comparison between the mark used by the defendant and the registered mark, and, having regard to the similarities and differences in the two marks, an assessment of the impact which the defendant's mark would make upon the average type of customer who would be likely to purchase the kind of goods to which the marks are applied.

The notional customer must be conceived of as a person of average intelligence, having proper eyesight and buying with ordinary caution. The marks must be viewed as they would be encountered in the market place and against the background of relevant surrounding circumstances. The marks must not only be considered side by side, but also separately…,. If each of the marks contain a main or dominant feature or idea the likely impact made by this on the mind of the customer must be taken into account.

As it has been put, marks are remembered rather by general impressions or by some significant or striking feature than by photographic recollection of the whole.”…,.

It has been accepted, that, one should not peer too closely at the mark and the alleged infringement to find similarities or differences but merely at the dominant impression given by the appearance of the mark: see Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum 1990 (1) ZLR 67; Puma AG Rudolf Dassier Sport v Global Warming (Pty) Ltd 2010 (2) SA 600 (SCA).

As for passing off, this court, quoting with approval a number of South African authorities, succinctly set out the basic principles which apply to it, in the case of Woolworth & Co (Zimbabwe) (Pvt) Ltd v The W Store & Anor 1998 (2) ZLR 402 (S)…, where GUBBAY CJ stated:

“These principles are lucidly identified, with reference to leading authorities in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) where, at 947E-948B, HARMS JA said:

'The essence of an action for passing off is to protect a business against a misrepresentation of a particular kind, namely, that the business, goods, or services of the representor is that of the plaintiff or is associated therewith…,.: in other words, it protects against deception as to a trade source or to a business connection….,.

Misrepresentation of this kind can be committed only in relation to a business that has goodwill or a drawing power…,.

Goodwill is the totality of attributes that lure or entice clients, or potential clients, to support a particular business…,. The components of goodwill are many and diverse…,. Well recognised are the locality and the personality of the driving force behind the business…,.

These components are not necessarily all present in the goodwill of any particular business. The only component of goodwill of a business that can be damaged by means of a passing-off is its reputation, and, it is for this reason, that, the first requirement for a successful passing off action is proof of the relevant reputation.”

It is apparent that passing off seeks to protect a product from the deceptive tendencies of a competitor who represents its product as that of the other. As a result of such deception or misrepresentation there should be injury or damage to reputation. Therefore, proof of reputation is a pre-requisite for passing off to be established: see also Zimbabwe Gelatine (Pvt) Ltd v Cairns Foods (Pvt) Ltd 2003 (1) ZLR 352 (S)…,.

APPLICATION OF THE LAW TO THE FACTS

Earlier on, I made reference to the specific trade mark registered for protection against use by any other party by the appellant as appears on the certificate of registration issued to it by the Registrar. By virtue of the trademarks register, the mark that is registered consists of the word 'SUN' a depiction of a Sun and various fruits underneath.

It is clear from the conditions of registration endorsed on the certificate that the appellant has no right to exclusive use of the device of various fruits except when they are used in the precise relation and association on the representation embodying the entire mark.

My understanding of that condition is that, while the various fruits may be used by any other party, their combination with the word 'SUN' and/or the picture of a sun will constitute an infringement.

This is so, because, by virtue of the definition of trade mark in section 2 of the Trade Marks Act [Chapter 26:04], the mark consisting of the word 'SUN' the picture of the sun and the fruits device qualifies as the appellant's registered trademark. The acceptance of that mark, in its form, and the issuance of a certificate of registration, triggered the protection accorded to a registered proprietor by section 8(1) of the Trademarks Act.

I entertain no doubt whatsoever, that, the court a quo fell into grave error in finding that the word 'SUN' was not registered and that what was registered “was the representation or device and not the word Sun.”

In fact, such a factual finding could not possibly be made by a court applying its mind to the facts. It is so grossly unreasonable in its defiance of logic as to attract interference on appeal. It is irrational.

Having said that, it follows, that, any use of a mark which so nearly resembles that registered by the appellant or one which is likely to deceive or cause confusion constitutes an infringement which is actionable in terms of section 9A of the Trade Marks Act.

As already pointed out, the respondent registered a trademark consisting merely of the words 'Royal Sun'. It did not register a device or representation of various fruits or a combination of fruits and the words “mixed fruit jam”. Therefore, the respondent's protected mark is only 'Royal Sun' and nothing more.

More than five (5) years after registering its 'Royal Sun' trade mark, precisely in December 2016, the respondent commenced using, not just the trademark, but a combination of it and the various fruits as well as the words “Mixed Fruit Jam” to sell jam.

The effect of such invention, if that it may be called, is that the respondent commenced selling “Royal Sun mixed fruit jam” using a logo which also contains various fruits.

The question which then arises is whether that was an infringement of a trade mark as to entitle the appellant to the relief provided for by section 9A of the Trademarks Act.

I totally agree with counsel for the appellant, that, the court a quo misdirected itself by undertaking a forensic audit of the two marks.

The law does not require the court to closely peer at the mark and the offending mark to find similarities and differences.

The proper test to be applied is an assessment of the impact which the respondent's mark would have on the average customer leisurely doing shopping at a supermarket, for instance. Would such a customer likely know the difference? This is so because marks are generally remembered by their general impression and not the details the court a quo looked for.

It occurs to me, that, had the court a quo applied the proper test, it would no doubt have come to the conclusion, that, the notional customer encountering Royal Sun Mixed fruit jam with the visual get up of the mark used on the respondent's logo would be deceived or confused into believing it is that of the appellant.

Deception or confusion is a matter of first impression not an outcome of a study.

The respondent cannot, in all fairness, suggest that the use of the words 'Royal Sun' in conjunction with the various fruits and the words 'Mixed fruit jam' was a mere coincidence.

Regarding the reputation of the appellant's product, it was not disputed that it has been on the market for a lengthy period, it was well known by consumers, and has acquired reputation. The word Sun has nothing to do with fruit jam. It was already in use in that class of products when the respondent chose to deploy it for the sale of jam as well.

While no case was made for expunging the respondent's trade mark from the register, the evidence before the court a quo established both an infringement and passing off in the use of its trademark with the fruits and the words mixed fruit jam on the logo.

To that extent, the relief provided for by section 9A(2) of the Trade Marks Act, which, inter alia, is an interdict against the use of the logo and its delivery, was available and should have been afforded the appellant. I am aware that the respondent's trade mark is used in respect of other products. That is well and good, but, an infringement was established only in the category of jams.

DISPOSITION

The law protects the proprietor of a registered trade mark against the use of a mark similar to or closely resembling the proprietor's trademark.

The combination of the respondent's registered trade mark, with other objects, was actionable at the instance of the appellant.

The appellant was entitled to interdict the use of the logo because it creates a deception or confusion between the appellant's jam product and that of the respondent.

The appeal has merit and should be upheld, but, the relief to be accorded to the appellant should be limited; firstly, to jam products, and, secondly, to the offending logo and not the trademark per se.

Regarding the issue of costs, the appellant has been substantially successful. It is entitled to its costs in the usual way wherein costs follow the result.

In the result, it be and is hereby ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside and substituted with the following;

“(a) The respondent be and is hereby interdicted and restrained from infringing the applicant's Trade Mark Number 1479/95 in Class 29 by the use of a logo with a combination of the words 'ROYAL SUN' together with a device or representation of various fruits and the words 'Mixed Fruit Jam' or any other words which nearly resemble the appellant's Trademark Number 1479/95 for its jam product to deceive or cause confusion in relation to the appellant's sun jam products.

(b) The respondent be and is hereby interdicted and restrained from using any mark, trade name, label, or get up likely to result in its jam products being taken to be those of the applicant without clearly distinguishing such jam products from those of the applicant.

(c) The respondent be and is hereby interdicted from passing off its jam products as those of the applicant registered under Trade Mark Number 1479/95.

(d) The respondent shall deliver to the applicant, or the Sheriff, for destruction, all packaging, labels, posters, wrapping, advertising matter, documents and other material in its possession bearing the ROYAL SUN MIXED FRUIT JAM which resembles the applicant's registered trademark.

(e) The respondent shall bear the costs of the application.”

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court dismissing the appellant's application, filed on 10 November 2017, for a permanent interdiction of the respondents from producing and broadcasting the television show known as Simba Savannah, which the appellant claimed to be “infringing or exploiting (its) right to the copyright, trademarks, and all other intellectual rights in and to the television show Format known as Dragon's Den.”

The order that the appellant sought in the court a quo was couched in the following terms:

“1. The application be and is hereby granted.

2. The 1st and 2nd Respondents, their officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them, are each and both immediately and permanently interdicted from producing and broadcasting the television show known as Simba Savannah or any such derivative work adapted or based on the Dragon's Den format.

3. The 1st and 2nd Respondents be and are hereby each ordered to account to Applicant, together with the supporting documents including, but not limited to, contracts for all gains, profits, and advantages derived by 1st and 2nd Respondents by their development, production, promotion, broadcasting and/or any other exploitation of the television show known as Simba Savannah;

4. The 1st and 2nd Respondents be and are hereby ordered to deliver to the Applicant for destruction all digital and/or physical copies of episodes of Simba Savannah, including without limitation, any development materials and/or advertising and other promotional material in the possession of each Respondent, within forty-eight (48) hours of the granting of this Order failing which the Sheriff of Zimbabwe and/or his lawful deputies be and are hereby directed to enter into 1st and 2nd Respondents respective premises from wherever such goods are located and seize for destruction all such digital and/or physical copies of episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents;

5. The Applicant be and is hereby authorised to take possession of the digital and physical copies of all episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents.

6. The 1st and 2nd Respondents shall, jointly and severally, the one paying the other to be absolved, pay the Applicant's Costs of this suit on the legal practitioner and client scale.”…,.

In this appeal, the appellant contends, that, the court a quo erred and misdirected itself in dismissing its application and seeks the setting aside of the court a quo's judgment and the substitution thereof with an order granting the relief that it sought as reproduced above.

FACTUAL BACKGROUND

THE APPELLANT'S CASE

It will be necessary, for the purposes of this judgment, to set out in some detail the case that was presented to the court a quo by the appellant.

The appellant was identified, by the deponent to the founding affidavit filed in the court a quo, as “a television production and distribution studio with company registration number 02719242.” It was said to hold “the exclusive right to license, adapt, produce and exploit a copyright protected audio-visual work being a reality television format program known as 'Dragons Den (hereinafter 'Dragons Den' or 'the Format).'”

The deponent to the founding affidavit further stated that “(T)he Format is an original work by Nippon Television Network Corporation, a company duly incorporated in accordance with the laws of Japan” and that it features entrepreneurs pitching their business ideas in order to secure investment finance from a panel of venture capitalists in exchange for equity in their businesses. She also stated that “The Format originated in Japan as 'Money Tigers or Tigers of Money.'”

It was also the appellant's averment, that, since 2002 “local versions of the Format” have been produced and transmitted in over 30 countries by authorized licensees - the appellant included.

In some countries, more than one version has aired, and the most popular name for the show is “Dragons Den” a name that originated in the United Kingdom.

There have been variations to the name, with some being titled 'Shark Tank' a name that originated in the United States of America. 'Lions Den' was said to be another variation of the name.

In versions where the name of the show contains a predator's name, the investors are referred to as that predator. It was averred, that, the “Dragons Den Format” has attained “strong recognition” in North America, South America, Australia, Asia, Europe, and Africa.

The deponent to the founding affidavit proceeded to enumerate what she described as the distinct elements of the “Dragons Den Format.” Seven elements are listed as follows:

(a) The participants are generally product designers or service operators who have what they consider to be a viable and potentially very profitable business idea, but who lack funding and direction.

(b) The participants pitch their business idea to established local business investors for funding, in exchange for equity in their businesses.

(c) Globally, the licensees of Dragons Den have referred to their local investors as 'Dragons' 'Tigers' 'Sharks' or 'Lions', with 'Lions' being used in Kenya, Denmark, Germany, and Finland.

(d) The “Format's titles” as localised around the world, have a particular and distinctive form and content, namely;

(1) The animal predator that is top of the local food chain; and

(2) The place or location in which that animal presides, hence 'Dragons Den' 'Lions Den' 'Shark Tank.'

(e) The investors are positioned in one row, seated side by side. The entrepreneur then enters the studio and stops next to his or her product, which is pre-placed, facing the investors.

(f) After the entrepreneur's pitch, the investors engage in a “lively debate-like style” and at the end each investor declares “I'm in” or “I'm out” as an expression of his or her decision on whether or not to invest in the entrepreneur's product and/or service.

(g) Lastly, Dragons Den features a post-pitch interview with each entrepreneur. The interview takes place backstage, behind the scenes “along with voice-over to narrate the story.”

It was averred, that, it came to the appellant's attention that a television reality show under the title “SIMBA SAVANNAH” was being broadcast in Zimbabwe by the second respondent every Sunday evening during the 7:00pm prime time slot and that the show was produced by the first respondent.

Thirteen episodes of the show (collectively referred to as “Season 1”) had already been broadcast as at the date of the institution of the proceedings a quo and a call for applications or pitches for Season 2 of the show was being advertised on the first respondent's website. In addition, Season 1 of the show was also readily accessible and downloadable from YouTube, a popular video sharing website which is accessible worldwide. The site was said to have “800 million unique users and visitors each month.”

It was contended, on behalf of the appellant, that “Simba Savannah” was “an un-authorised adaptation of, and is based on and/or incorporates elements of the 'Dragons Den Format'.”

It was also contended, that, the first respondent “blatantly reproduced and/or incorporated several elements from the “Dragons Den Format, including, without limitation, its title, studio set, episode sequence, stage design, staging sequence, manner in which the pitches and responses are presented and filmed, music, voice over and post-pitch interviews thereby creating an entirely similar look and feel as the instantly recognisable Dragons Den Format.”

It was further contended that “Simba Savannah” replicates Dragons Den's “expression” and that it is neither original nor uniquely Zimbabwean.

Furthermore, that the first respondent deliberately chose to mimic the Format and cause confusion in the minds of consumers. The first respondent, it was contended, did not choose a unique title based on business in Zimbabwe but chose 'Simba Savannah' “in order to pass off its program under the Format in aid of taking advantage of the goodwill behind the Sony brand.”

It was also contended, that, Simba Savannah is confusingly similar to Dragons Den and “suggests an association between the appellant and the respondents in respect of the Dragons Den Format.”

Furthermore, that the respondents had derived direct benefit from the international reputation and established goodwill “inherent in the Dragons Den Format.”

It was averred, that, the respondents did not seek permission or licence from the appellant “in respect of the use of the Dragons Den Format” and that the appellant does not consent to such use, reproduction or exploitation.

It was stated, that, it, in fact, sometime in June 2016 “licensed the Format to Invision Studios (Pvt) Ltd in Zimbabwe” and that to its knowledge, the second respondent was aware of this licence but proceeded with the broadcast of Simba Savannah, regardless.

The appellant disapproved this reproduction or exploitation.

It was also stated, that, on 12 August 2016, the appellant served the respondents with “a cease and desist” letter requesting them to respect its copyright and intellectual property rights.

In its response, the first respondent declined to comply with the request and indicated its intention to continue with its conduct. The second respondent also declined to comply with the request and advised that it would only do so when so enjoined by the court.

The appellant served the respondents with a further “cease and desist” letter dated 21 December 2016.

However, no indication is made as to whether the second letter was responded to.

It was further stated, that, the appellant had thus had to resort to filing the application through which it sought “to immediately stop 1st and 2nd Respondents from continuing their injurious actions from which it has suffered irreparable and incalculable harm, and which will continue unless the respondents are enjoined from further abuse of its copyrighted material and unauthorised adaptation and use of the Dragons Den Format.”

Regarding the requirement of establishing a clear right to a permanent interdict, it was averred in the founding affidavit that the “Dragons Den Format” is a legally protected copyright work and that Simba Savannah is an un-authorised derivative work violating sections 13 and 19 of the Zimbabwe Copyright and Neighbouring Rights Act [Chapter 26:05] (the Act).

It was further averred, that, the appellant, being the holder of an exclusive licence “to the copyright, trademark and all intellectual property rights in and to the Dragons Den Format was, therefore, entitled, in terms of sections 51 to 53 of the aforesaid Act, to the relief sought as its rights are concurrent with the rights and remedies of the owner of the copyright under which its licence was granted.”

The averment was also made, that, Simba Savannah, as an unauthorised derivative work, violates Article 2 of the Berne Convention for The Protection of Literary and Artistic Works, to which Zimbabwe is a signatory.

Furthermore, that the appellant's rights to the copyright “in and to the Dragon's Den Format are protected in Zimbabwe by virtue of Regulation 17 of the Copyright and Neighbouring Rights Regulations, 2006 [Chapter 26:05]” (sic) which recognises for protection, works originating from any member of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) Agreement with Japan, United States of America, United Kingdom, and Zimbabwe all being signatories to the treaty.

The contention was also made, that, in the alternative, the facts set out above support a claim of passing off, by the first respondent, of the appellant's “licensed and copyrighted work.”

It was contended, that, the passing off of Simba Savannah has caused confusion amongst or in the minds of viewers in Zimbabwe as demonstrated by local news articles in Zimbabwe where members of the Zimbabwean public have drawn comparisons to the “instantly recognisable Dragons Den Format, this being due to the glaringly obvious similarities between Simba Savannah and Dragons Den.”

This, it was contended, had misled the public to believe that Simba Savannah is based on Dragons Den and that it was produced under licence from the appellant. This presumed association, it is contended, is in fact a benefit derived by the respondents from the appellant's international reputation and established goodwill, resulting in damage to the appellant's intellectual property and recognised brand.

The appellant claimed that the respondents continued production and broadcasting of Simba Savannah will continue to cause confusion and was likely to deceive viewers regarding the “origin, affiliation, association, connections and/or endorsement of the respondents actions.” Consequently, it was entitled to an injunction or interdict prohibiting further violations of its rights by the respondents.

If the relief sought was denied, it was averred, the appellant's rights to “the Dragons Den Format would have been irreversibly and irreparably disregarded or defied. No amount of monetary damages would adequately compensate the appellant or its licensees for the damage to their rights, business, positive reputation and goodwill.” The appellant thus had no other remedy but to institute the proceedings, it was contended.

The above sets out the material facts on the basis of which the appellant felt that it was entitled to the relief that it sought in the court a quo as reflected in paragraph 2 of this judgment.

THE RESPONDENTS CASES

(i) THE FIRST RESPONDENT

The first respondent, in opposing the application, stated, inter alia:

“While Applicant may be the exclusive licensee of the audio visual work known as Dragons Den, 1st Respondent denies that the 'format' is an audio visual work as defined in the Copyright and Neighbouring Rights Act [Chapter 26:05].

(a) 1st Respondent has no knowledge of the alleged productions and transmission of the 'format' and contends that what was produced was the program, not the format.

(b) In any case, 1st Respondent maintains, that, the format of a television show is not an audio visual work. Consequently, a format cannot be protected as a copyright work and use of a format which has some similarity with such format does not constitute copyright infringement.

(c) Further, the name of the show is not a copyrightable work, and the fact that where the name contains a creature's name, the investors are referred to as such creature only demonstrates that the idea of an animal name to designate its show by 1st Respondent is what aggrieved the applicant. Applicant is complaining about the use of an idea, yet ideas are not protected under the law of copyright.

(d) I am advised…, that ideas, methods of operation, concept(s) are not eligible for copyright even if they are explained, illustrated, or embodied in a work. I therefore submit that the features allegedly infringed are mere ideas or concepts which cannot be protected under copyright law. Applicant therefore has no exclusive rights in any of the alleged elements of the format.”

It was also the first respondent's stance that Simba Savannah was not an adaptation of Dragons Den.

It also argued, that, going by the definition of “adaptation” in the Copyright and Neighbouring Rights Act [Chapter 26:05] “it is not possible for an audio visual work to be adapted into another audio visual work.”

Furthermore, that even if it was to be assumed, for argument's sake, that Simba Savannah was based on Dragons Den, this would not constitute infringement of copyright.

The first respondent denied that Simba Savannah incorporated or reproduced any elements of the “Dragons Den Format.”

The deponent to the opposing affidavit further stated “(T)he title, Studio set, episode sequence, stage design, staging sequence, and all other elements stated in this paragraph are not copyright works.”

Furthermore, that “the basis of Dragon's Den as set out…, clearly shows that it is not a copyright work but an idea or concept.”

It was also argued, that, the appellant did not prove goodwill or any damages suffered by it.

It was contended, in the first respondent's opposing affidavit, that, the appellant itself was not clear as to how its intellectual property rights were allegedly violated as it was not clear whether it claimed copyright infringement or trademark infringement. It is not clear whether the claim is for infringement of copyright or it is for passing off.

It denied ever using the appellant's Dragons Den Format “as alleged or at all.”

It also denied having derived any benefit from the alleged international reputation and the claimed goodwill of the Dragons Den Format.

The first respondent further contended, that, the appellant had not demonstrated that it had copyright “in the alleged format of Dragons Den” as it had placed nothing on the record to establish the existence of such copyright.

As the appellant claimed to enjoy copyright in its “format” in the United States of America, it ought to have attached proof of deposit of its copyright work with the United States Patents and Trade Marks Office (USPTO) where there is a depository system.

The first respondent thus denied infringing any of the appellant's intellectual property rights as alleged or at all.

It denied that it obtained a direct financial benefit from airing Season 1 of Simba Savannah and denied that it was unjustly enriched as alleged or at all.

It commented on the appellant's contention that it is entitled to an interdict because, inter alia, the first respondent “has already shown its intention to continue with the copied and/or created derivative works from the Dragons Den Format by calling for pitches for Season 2.”

The first respondent's comment was that the appellant's statement that “the copied and/or created works are unauthorised” showed lack of understanding on the part of the appellant or its advisors as the first respondent did not need the appellant's authorisation to create its own work “no matter how similar that work may appear” as long as it had not copied the appellant's work.

The first respondent also contended, that, sections 51 to 59 of the Copyright and Neighbouring Rights Act [Chapter 26:05] availed other effective remedies to the appellant but the appellant had chosen to disregard them and opted to seek a permanent interdict because it had no evidence to sustain its actions and to attain such remedies. The appellant was thus abusing court process to intimidate and harass legitimate competitors.

It was also the first respondent's stance, that, the appellant ought to have demonstrated that the “Format” is a 'work' as defined in the Copyright and Neighbouring Rights Act but had failed to do so.

The 'format' of a television program, it argued “does not fit in the definition of 'work' set out in the Act.”

Simba Savannah is not an adaptation of any protected audio-visual work which can be infringed. At most, it is a concept, and concepts are excluded from copyright protection by section 10(4) of the Copyright and Neighbouring Rights Act.

The first respondent further contended, that, besides failing to establish one of the essential requirements for the granting of a permanent interdict, some of the relief sought in the other paragraphs of the Draft Order had not been claimed or founded anywhere in the founding affidavit. This, it claimed, to be an indication that the appellant was on a fishing expedition and that it was not sure what it was that it was seeking from the court.

(ii) THE SECOND RESPONDENT

The second respondent did not oppose the application.

THE DECISION OF THE COURT A QUO

The court a quo dismissed the appellant's application. It found that the appellant's claim related to more of a concept or an idea and not to an audio visual work. It found that there had therefore not been any infringement of copyright.

With regard to passing off, it found that the first respondent had not misrepresented that Simba Savannah was Dragons Den.

It also found, that, there was no proof that the appellant enjoyed a reputation in the format, form, and presentation of its television program. Neither had the appellant proven goodwill in its program known as Dragons Den.

It reasoned that the protection which copyright gave created a monopoly and there had to be certainty in the subject matter of the copyright, which subject matter the appellant had failed to establish.

The court also held, that, the appellant did not have a clear right in the circumstances.

It further held, that, having established that Dragons Den was not an audio visual work, the appellant could thus not suffer any prejudice through the infringement of a non-existing copyright.

It held, that, the appellant could institute criminal proceedings against the respondents in accordance with section 59 of the Copyright and Neighbouring Rights Act [Chapter 26:05], and that there was therefore, another remedy which the appellant could pursue.

The court a quo took the view that the relief sought by the appellant, of a permanent interdict, could not be granted as its requirements had not been satisfied.

It found that the appellant had failed to prove that it had goodwill in its programme or that it enjoys a reputation.

It dismissed the application.

Aggrieved by this decision, the appellant noted an appeal to this Court on the following grounds:

GROUNDS OF APPEAL

“1. The learned judge in court a quo erred in finding that the appellant's programme (Dragons Den) was not an audio-visual work within the meaning of that expression as utilized in the Copyright and Neighbouring Rights Act [Chapter 26:05].

2. In any event, the learned judge erred in finding that the appellant had not established a clear right.

3. The learned judge in (the) court a quo misdirected himself on the facts and erred in finding that the appellant had not established goodwill in respect of its programme.

4. The learned judge in court a quo misdirected himself on the facts and erred in finding that there were no sufficient similarities between the two programs so as to establish passing off.

5. The learned judge in court a quo erred in failing to have regard to the provisions of the Berne Convention for the Protection of Copyright Works in determining the appellant's rights.

RELIEF SOUGHT

The appellant seeks the following relief:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is set aside and the following is substituted:

“The application succeeds and an order is made in terms of the Draft Order attached to the application.”

THE APPELLANT'S SUBMISSIONS BEFORE THIS COURT

Before this Court, counsel for the appellant, made the following submissions:

The court a quo erred in finding that the television program, Dragons Den, was not an audio visual work.

It, in fact, is an audio-visual work in respect of which copyright is held by the appellant and which the first respondent has wrongfully and unlawfully adapted in contravention of the Copyright and Neighbouring Rights Act [Chapter 26:05]. The court a quo failed to have regard to the provisions of the Copyright and Neighbouring Rights Act, which, in section 2, defines “audio-visual work.”

A television program is an audio-visual work.

The court a quo ought to have examined whether Simba Savannah constituted an adaptation but it failed to do so. It ought to have had regard to the similarities between Dragons Den and Simba Savannah that were highlighted by the appellant in its founding affidavit and that is where the inquiry ought to have ended, with a finding that Simba Savannah is a clear and straightforward breach of copyright.

It was counsel's further submission, that, the court a quo ought not have had regard to the New Zealand case of Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 (Green's case) as the case is inapplicable to the matter that was before it for two reasons:

(i) Firstly, the appellant in that case claimed damages for passing off and infringement of copyright in television scripts and dramatic format of his program.

(ii) Secondly, the expression “audio-visual work” is not defined in the New Zealand Copyright Act, unlike the Zimbabwean Copyright and Neighbouring Rights Act which has defined it. If the court a quo had had regard to the Zimbabwean Copyright and Neighbouring Rights Act, which provides that copyright (which is defined) exists in an audio-visual work, and which also, in section 19, prohibits an adaptation thereof, it would have come to a different conclusion.

Furthermore, Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 was a trial action and was not argued on the papers as happened in casu.

In any event, Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 involved a dramatic work.

Counsel submitted, that, on a proper interpretation of the case of Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), it is clear, that, the appellant has a copyright and that there has been an adaptation by the respondents. For that reason, the appellant was entitled to an interdict by virtue of the provisions of the Copyright and Neighbouring Rights Act [Chapter 26:05].

The further submission was made, that, the first respondent, besides saying that Simba Savannah was uniquely Zimbabwean, had not said that it was its original idea and had not explained where they got the idea from.

On the other hand, the appellant had set out, in detail, the aspects which it alleged had been copied from Dragons Den and this found credence from press articles and reviews in which members of the public likened Simba Savannah to Dragons Den. The first respondent had therefore caused irreparable harm to the appellant which had no other remedy than the relief that it sought a quo.

It was also counsel's submission, that, the definition of “adaptation” in the Copyright and Neighbouring Rights Act does not relate to audio-visual works, and that, in casu, resort must therefore be had to the ordinary grammatical meaning of the word.

It was submitted, that, in any event, section 19 of the Copyright and Neighbouring Rights Act vested in the owner of a copyright, the exclusive right to, inter alia, make or authorise the making of an adaptation of the work.

With regard to passing off, counsel submitted, that, the court a quo applied the wrong test when it referred to the making of a misrepresentation whereas the two requirements that must be satisfied are reputation or goodwill (of the plaintiff) and the likelihood of confusion (to members of the public).

THE FIRST RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the first respondent submitted as follows:

The critical question is: what it was that the appellant complained of in the court a quo.

According to the founding affidavit, Dragons Den is a television program, but, the appellant complained of infringement of a television format.

What the appellant sought to protect was thus a television format.

The concept of a television format is alien to the Copyright and Neighbouring Rights Act [Chapter 26:05].

“Format” does not appear in the definition section or any section in terms of which different kinds of works are protected in the Copyright and Neighbouring Rights Act.

The appellant attempted to classify 'format' as an original work or an audio-visual work.

A format cannot, however, fit into the definition in section 2 of the Copyright and Neighbouring Rights Act, of an audio visual work, which, in terms of the said definition, must be recorded or fixated, as would be the case with a DVD, which contains moving images and sounds that are embodied and fixated in that medium or an MP3 or MP4 that has pictures and sounds together.

That, which the appellant alleged to have been infringed, has not been fixated and there was no allegation in the founding affidavit that there was a medium which contains or includes moving pictures and sounds that the first respondent accessed and reproduced.

Counsel for the first respondent submitted, that, in paragraph 24 of the appellant's heads of argument, there was a vacillation amongst three poles, these being: (i) a television program; (ii) a format; and (iii) an audio-visual work and that the appellant seemed to suggest that the three are synonymous, when they are not.

The primary question was whether or not copyright can ever subsist in a television format in terms of the Copyright and Neighbouring Rights Act.

In terms of section 128 of the Copyright and Neighbouring Rights Act, the appellant's claim must find residence in an identified section of the Copyright and Neighbouring Rights Act or any other statutory provision and the appellant had failed in this regard.

The idea or concept of entrepreneurs pitching to potential investors cannot be protected by the Copyright and Neighbouring Rights Act, as section 10, which enumerates works that are eligible for copyright, excludes such from protection by means of copyright.

The appellant's claim could not succeed as it was hinged on an alleged adaptation of a format, which alleged adaptation is alien to the Copyright and Neighbouring Rights Act.

With regard to the case authorities in Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 and Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), counsel submitted, that, what emerged therefrom was that, in principle, a format may be protected as a dramatic work, but never as an audio-visual work.

The closest that a format comes to get copyright protection, is, if it is in the form of a dramatic work.

The appellant failed to satisfy the criteria for such protection to be availed. In casu, there was no reproduction of any known copyrighted work.

With regard to passing off, counsel submitted, that, where a litigant fails to establish a misrepresentation, they cannot succeed in establishing passing off.

He also submitted, that, the reference by the appellant to the Berne Convention for the Protection of Literary and Artistic Works was misguided. The reason for this, he submitted, was that it does not have direct application except as domesticated in the Copyright and Neighbouring Rights Act [Chapter 26:05].

THE SECOND RESPONDENT

The second respondent, not having filed any opposing papers in the court a quo, was not present or represented at the hearing of this appeal.

ISSUE FOR DETERMINATION

The issues for determination are aptly set out in the first respondent's heads of argument as follows:

1. Whether or not the appellant's programme, Dragon's Den, is protected as an audio visual work in terms of the Copyright and Neighbouring Rights Act [Chapter 26:05].

2. Whether or not the appellant satisfied the requirements for a permanent interdict.

3. Whether or not the appellant satisfied the requirements for passing off.

4. Whether or not the provisions of the Berne Convention for The Protection of Literary and Artistic Works have direct application in copyright disputes in Zimbabwe.

In my view, the listed issues crystallise the questions that arise.

The over-arching issue, of whether or not the court a quo erred in dismissing the appellant's application, will be answered by the determination made thereon.

THE LAW AND ITS APPLICATION TO THE FACTS

Despite the attempt, at the beginning of the founding affidavit, to describe or classify Dragon's Den as an audio visual work, it is clear from a perusal of the whole document that the appellant's complaint pertained to the format of Dragon's Den.

This is demonstrated by the persistent and consistent use, inter alia, of the phrase “Dragon's Den Format” and the word 'Format' as reflected in the appellant's case as set out a quo. More pertinently, in paragraph 14, in describing the nature of the application that was before the court a quo, the following is stated:

“NATURE OF APPLICATION

14. This is a Court Application in terms of Order 32 Rule 230 wherein the Applicant seeks an Order to permanently interdict the 1st and 2nd Respondents from infringing or exploiting Applicant's right to the copyright, trademarks and all other intellectual property rights in and to the television show Format known as Dragon's Den.”…,.

Paragraph 14 thus identifies the nature of the application as one for the protection of the format of a television show; such format being known as Dragon's Den.

In addition to this, the founding affidavit kept referring, in the main, to the format as the aspect that had been adapted without authorisation and which it was claimed ought to be accorded copyright protection by the court.

Significantly, this having been the nub of the appellant's case, as pleaded, is the case that the first respondent responded to in its opposing papers.

The statutory framework which governs copyright issues is the Copyright and Neighbouring Rights Act [Chapter 26:05].

Section 2 of the Copyright and Neighbouring Rights Act defines “audio-visual work” to mean 'a recording or fixation on any medium from which a moving image, together with any sounds associated with the image, may be produced by any means, but does not include a computer program or a broadcast.”

From this definition, for anything, excluding a computer program or a broadcast, to qualify as an audio-visual work, it must be:

(i) A recording or fixation;

(ii) On any medium;

(iii) From which a moving image;

(iv) Together with any sounds associated with the image;

(v) May be produced (by any means).

The Copyright and Neighbouring Rights Act defines 'record' to mean “any disc, tape, perforated roll or other device in or on which information is or can be embodied so as to be capable, with or without the aid of some other instrument, of being automatically reproduced.”

I take it that 'a recording' is to be construed accordingly and in conformity to the said definition.

The definition given to 'sound recording' is “means any fixation of sound on a record, but does not include a sound-track associated with an audio-visual work.”

I do not think that this definition is of any relevance in casu, considering the facts of this matter.

The Copyright and Neighbouring Rights Act also states, in the interpretation section, that 'fixation' “in relation to sounds, means the embodiment of the sounds or representations of the sounds in such a way that they can be heard, reproduced, or communicated through a machine or device.”

The appellant's complaint, per its pleadings, being about the format of the television show known as Dragon's Den, there has been no demonstration or establishment that the format is a recording or a fixation as contemplated by the Copyright and Neighbouring Rights Act [Chapter 26:05].

What the appellant alleges to have been infringed has neither been shown to be a recording or a fixation on any medium from which a moving image with sounds associated therewith may be produced and which the first respondent accessed and reproduced.

The appellant's founding affidavit mostly refers to Dragon's Den as “the format” while occasionally vacillating between calling it a format or an audio visual work or a program.

Before us, counsel for the appellant submitted that “the program, Dragon's Den, is an audio-visual program in respect of which the copyright is held by the appellant and in respect of which the first respondent has wrongfully and unlawfully adapted in contravention…,. This television program is an audio visual work.”

The vacillation, and sometimes conflation, is also evident in paragraph 24 of the appellant's heads of argument where it is submitted as follows:

“To hold, as a matter of principle, that, a television programme or unique format in the form of an original audio visual work is not capable of being protected by copyright, makes bad law.”…,.

However, as noted earlier, the appellant's own characterisation of its application a quo was that it was for the protection of the format of its television show.

There was a noticeable effort by the appellant's counsel, in addressing us, to steer the appellant's case away from the pleaded claim of protection of a format, towards it being regarded, instead, as a claim for protection of an audio visual work, hence the interchanging descriptions.

The impression is created, that, in formulating the claim, no attention may have been given to the Copyright and Neighbouring Rights Act [Chapter 26:05] in order to ascertain the copyrights that are protected.

The possible subsequent realisation that a format is not recognised, and, accordingly, protected as an audio-visual work might be the explanation for counsel's great effort to effectively plead the claim afresh during his oral submissions before us.

The lack of clarity by the appellant itself, in its founding affidavit, detracts from the cogency of its claim.

It appears probable, that, the placing of additional reliance on the Berne Convention for The Protection of Literary and Artistic Works is an indication of the realisation on the part of the appellant, that, on the presented facts, coupled with the articulation or formulation of its claim, there would be no copyright protection afforded to it in terms of the Copyright and Neighbouring Rights Act [Chapter 26:05]….,.

Section 9 of the Copyright and Neighbouring Rights Act [Chapter 26:05] provides as follows:

“9 Nature and vesting of copyright

(1) Copyright is a real right which subsists in a work by virtue of this Act and which entitles its owner, exclusively, to do in Zimbabwe the things which this Act designates in relation to that work.

(1) Copyright subsists in a work if it is eligible for copyright in terms of section ten, and, if any, or all, of the following requirements are met –

(a) The author of the work is a qualified person by virtue of section eleven;

(b) The work qualifies for copyright protection in terms of section twelve by virtue of the country in which it was published or made;

(c) The work was made under the direction or control of the State or a designated international organisation as provided in section thirteen.”

Section 10 of the Copyright and Neighbouring Rights Act lists the following, in paragraphs (a) to (h), as works that are eligible for copyright:

(i) Literary works;

(ii) Musical works;

(iii) Artistic works;

(iv) Audio-visual works;

(v) Sound recordings;

(vi) Broadcasts;

(vii) Programme-carrying signals; and

(viii) Published editions.

A format does not make the list.

Section 12 of the Copyright and Neighbouring Rights Act is significant. It provides:

“12 Copyright by virtue of country of first publication

(1) A work that is eligible in terms of section ten shall qualify for copyright protection if it is published in Zimbabwe or in a designated country.

(2) Without derogation from subsection (1) –

(a) A computer program, audio-visual work, or broadcast that is eligible in terms of section ten shall qualify for copyright protection if it is made in Zimbabwe or a designated country;

(b) A programme-carrying signal that is eligible in terms of section ten shall qualify for copyright protection if it is emitted to a satellite from a place in Zimbabwe or a designated country.

(3)…,.”…,.

From my reading of section 12 of the Copyright and Neighbouring Rights Act, to qualify for copyright protection, a work, whether first published in Zimbabwe or in a designated country, must first be eligible in terms of section 10 of the Copyright and Neighbouring Rights Act.

In my view, this means, that, the citation of the Berne Convention for The Protection of Literary and Artistic Works is not of any benefit to the appellant's case. It is rendered irrelevant by the provisions of section 12 of the Copyright and Neighbouring Rights Act [Chapter 26:05].

The works that are eligible, in terms of section 10 of the Copyright and Neighbouring Rights Act, have been listed above.

The answer to the question whether the format of the television show, Dragon's Den, qualifies as an audio-visual work, in terms of the Copyright and Neighbouring Rights Act, determines whether it is necessary to interrogate whether or not the requirements for the granting of the interdict sought were met.

Clearly, the first respondent's main basis for opposing the application in the court a quo was that the appellant sought to protect a format, which, in its submission, was not protected by any copyright in terms of the Copyright and Neighbouring Rights Act. It contended, that, the appellant was not protecting an audio-visual work.

A 'format' has been defined to be “the way in which something is arranged or set out” (per google search - Definitions from Oxford Languages). The Concise Oxford Dictionary defines it as “style or manner of arrangement or procedure.”

The pertinent question is: whether or not copyright can subsist, in terms of the Copyright and Neighbouring Rights Act, in a television show format.

Section 128 of the Copyright and Neighbouring Rights Act provides as follows:

“128 No copyright under common law

Subject to this Act, no copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Act or any other enactment.”

Clearly, therefore, the appellant's right or claim must find its residence in an identified section of the Copyright and Neighbouring Rights Act or another statutory provision.

The protection sought, under cover of an audio visual work, cannot be substantiated under the Copyright and Neighbouring Rights Act because the “format” of Dragon's Den does not fit into the Act's definition of an audio-visual work.

No other provision has been cited or invoked under which copyright protection should be accorded to the format.

A format does not fit into the Copyright and Neighbouring Rights Act's definition of an audio-visual work. Neither is a format listed as a work eligible for copyright protection.

In the circumstances, the court a quo cannot be faulted in dismissing the appellant's main claim based on copyright protection of a format. It stated as follows at p127:

“I am inclined to agree with the interpretation given by the first respondent. More specifically, I am not convinced that any recording or fixation, where there are moving images with sounds associated with the images which must be produced by any means gives rise to rights under copyright.”

Understandably, counsel for the appellant sought to argue, that, the statement in the second sentence by the learned Judge a quo was in contradiction to sections 2 and 19 of the Copyright and Neighbouring Rights Act.

Literally read, counsel for the appellant's submission would appear to be correct.

But, read in context, the impression created is that there seem to be some missing or omitted words in the statement. This is particularly so when regard is had to the fact that the court a quo found against the appellant. Furthermore, the interpretation given by the first respondent, which interpretation the court indicated that it was inclined to agree with, is captured in the court's judgment at p126 in the following terms:

“While applicant avers that Dragon's Den falls under an audio visual work as defined in section 2 of the Act, first respondent is of a contrary view. First respondent avers, that, not only is Dragon's Den not an audio-visual work but it is not a fixation or an adaptation of an audio visual art work.”…,.

The court a quo cannot be faulted, considering that the dispute that was presented and ventilated and argued before it was that of copyright protection of a format.

However, the tenor of the appellant's heads of argument, in this Court, shifted from emphasising on the infringement of a format.

The submission is made therein that “(T)he distinct elements of Dragon's Den which the appellant avers qualify the television programme, as a whole, as an original audio-visual work are specifically set out in paragraph 8 of the founding papers at pages 4–5 of the record, and are…,.”

The definition of “fixation” in section 2 of the Copyright and Neighbouring Rights Act is of significance. It is stated as follows:

“'fixation' in relation to sounds, means the embodiment of the sounds or representations of the sounds in such a way that they can be heard, reproduced, or communicated through a machine or device.”

It is, in my view, an inescapable fact, that, on the claim as presented a quo, there was no establishment of any fixation pertaining to Dragon's Den. The claim a quo related to the format of the television show Dragon's Den.

The court a quo cannot be faulted for stating as follows:

“In the instant case, we are talking more of a concept or idea as opposed to a work with a script and details of the text.”

A reading of the Copyright and Neighbouring Rights Act will show, that, concepts or ideas are not included for protection by means of copyright. Neither are formats included.

Section 10(5) of the Copyright and Neighbouring Rights Act provides that the following things, inter alia, “shall not be eligible for copyright: ideas, procedures, systems, methods of operation, concepts, principles, discoveries, facts or figures, even if they are explained, illustrated, or embodied in a work.”

On the case presented a quo, because a format is not an audio-visual work in terms of the Copyright and Neighbouring Rights Act, there was no infringement of, as contended, an audio visual work in the form of a format.

As correctly submitted by the first respondent, in its heads of argument, the Berne Convention for The Protection of Literary and Artistic Works has no direct application in the determination of this matter.

Section 128 of the Copyright and Neighbouring Rights Act [Chapter 26:05] categorically states that:

“(S)ubject to this Act, no copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Act or any other enactment.”

Furthermore, the Berne Convention for The Protection of Literary and Artistic Works only finds application in Zimbabwe to the extent that its provisions have been domesticated in the Copyright and Neighbouring Rights Act or any other domestic or local enactment in terms of section 327 of the Constitution of Zimbabwe.

The appellant was not clear as to which specific provision of the Berne Convention for The Protection of Literary and Artistic Works it was placing reliance on and to what effect.

In the pleadings a quo, it averred, that, Simba Savannah is an un-authorised derivative work that violates Article 2 of the Berne Convention for The Protection of Literary and Artistic Works.

The Article has eight sub-articles. It refers, inter alia, to literary and artistic works, translations, adaptations, arrangements of music, and other alterations of a literary or artistic work.

Reference was also made to section 17 of the Copyright and Neighbouring Rights Regulations, 2006 which provides as follows:

“The following shall be designated countries -

(a) Any member of the Berne Convention for the Protection of Copyright Works;

(b) Any member of the Agreement on Trade Related Aspect of Intellectual Property (Trips Agreement).”

The error of the court a quo was not articulated with sufficient clarity to enable this Court to appreciate the alleged error or misdirection.

In Chikura v Al Shams SC17-17 ZIYAMBI JA stated:

“It is not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of 'grounds of appeal' in order to determine the real issues for determination by the court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal. That is not so in the instant matter. The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this Court.”

I appreciate that I am not dealing with grounds of appeal in casu.

However, it is my considered view, that, the essence of the principle enunciated by ZIYAMBI JA is applicable in the present circumstances where the appellant did not clearly and concisely plead the specific provision(s) of the Article(s) and/or sub-articles of the Berne Convention for The Protection of Literary and Artistic Works that it was placing reliance on.

The appellant should have identified which of the eight categories listed in Article 2 of the Berne Convention for The Protection of Literary and Artistic Works that its claim falls under.

It is not for the court to speculate and make assumptions as to what might have been in the appellant's mind. It is not for the court to plough through the Berne Convention for The Protection of Literary and Artistic Works in search of the applicable provisions and make a case for the appellant.

I also entirely agree with the submission made by counsel for the first respondent, that “(W)hile it is appreciated that section 327(6) (of the Constitution) allows the court, when interpreting legislation to adopt any reasonable interpretation that is consistent with any international convention which is binding on Zimbabwe…, there is no inconsistency between the provisions of the Copyright and Neighbouring Rights Act and the Berne Convention that would have persuaded the court a quo to find in favour of the appellant.”

In any event, Article 5 of the Berne Convention for the Protection of Literary and Artistic Works provides as follows:

“(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

(3) The enjoyment, and the exercise of these rights, shall not be subject to any formality; such enjoyment, and such exercise, shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

(4) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy, in that country, the same rights as national authors.”

The following submissions are made in paragraphs 5 and 6 of the appellant's heads of argument:

“5. One of the principles of the Berne Convention is that of national treatment, which is found in Article 5(4), and provides that Appellant is afforded the same protection, in Zimbabwe, as a Zimbabwean national. It is on this basis that Appellant brought its Application in the court a quo.

6. The Berne Convention further acknowledges broadcasts (Article 11) and adaptations (Article 12) as rights that must be recognized as exclusive rights of authorization.”

The reference to sub-article (4) must have been in error because the sub-article does not state what is alleged. It may have been meant to be a reference to sub-article (3) (supra).

The issue in contention a quo having been the format (of Dragon's Den); a format having been found not to be an audio-visual work; and a format having been found to be excluded from works that are eligible for copyright protection under the Copyright and Neighbouring Rights Act [Chapter 26:05], the invocation of the Berne Convention for the Protection of Literary and Artistic Works does not appear to me to import into our (the Zimbabwean) Act the protection, under copyright, of a format.

Sub-article (3) affords the enjoyment of the same rights as are enjoyed by nationals.

There is no copyright protection of a format in terms of the Copyright and Neighbouring Rights Act.

The decision of the court a quo cannot be faulted.

The claim based on passing off needs to be interrogated next.

In dismissing the claim based on passing off, the court a quo stated as follows:

“In the instant case, besides alleging that Dragon's Den is viewed in many countries, there is no proof produced that it enjoys a reputation in the format, form, and presentation of its television program.

A scrutiny of the facts and legal principles leads me to the conclusion, that, applicant has not proven goodwill in its program Dragon's Den. Neither has it proven that there is any reasonable likelihood of confusion between Dragon's Den and Simba Savannah on the material before me.

On the general principles applicable in passing off cases, GUBBAY CJ stated as follows in Woolworth & Co (Zimbabwe) Ltd v The W Store & Anor 1998 (2) ZLR 402 (S)…,:

“These principles were lucidly identified, with reference to leading authorities, in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) where, at 947E–948B, HARMS JA said:

'The essence of an action for passing off is to protect a business against a misrepresentation of a particular kind, namely, that the business, goods, or services of the representor is that of the plaintiff or is associated therewith (Capital Estate & General Agencies (Pty) Ltd and Others v Holiday Inns Inc and Others 1977 (2) SA 916 (A) at 929C–D).

In other words, it protects against deception as to a trade source or to a business connection (Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son (Pty) Ltd 1993 (2) SA 307 (A) at 315B).

Misrepresentations of this kind can be committed only in relation to a business that has goodwill or a drawing power (Afrikaans: werfkrag).

Goodwill is the totality of attributes that lure or entice clients or potential clients to support a particular business (cf A Becker & Co (Pty) Ltd v Becker and Others 1981 (3) SA 406 (A) at 417A).

The components of goodwill are many and diverse (O'Kennedy v Smit 1948 (2) SA 63 (C) at 66; Jacobs v Minister of Agriculture 1972 (4) SA 608 (W) at 624A-625F). Well recognised are:

The locality and the personality of the driving force behind the business (ibid), business licences (Receiver of Revenue, Cape v Cavanagh 1912 Ad 459); agreements such as restraints of trade (Botha and Anor v Carapax Shadeports (Pty) Ltd 1992 (1) SA 202 (A) at 211H–I); and reputation.

These components are not necessarily all present in the goodwill of any particular business.

The only component of goodwill of a business that can be damaged by means of a passing-off is its reputation, and, it is for this reason that the first requirement for a successful passing off action is proof of the relevant reputation: (Hoechst Pharmaceuticals (Pty) Ltd v The Beauty Box (Pty) Ltd (in liquidation) and Another 1987 (2) SA 600 (A) at 613F–G; Brian Boswell Circus (Pty) Ltd and Another v Boswell-Wilkie Circus (Pty) Ltd 1985 (4) SA 466 (A) at 479D; Williams t/a Jennifer Williams & Associates and Another v Life Line Southern Transvaal 1996 (3) SA 408 (A) at 419A–B, 420B).'”

The appellant's claim, in effect, is to the effect, that, the first respondent passed off Simba Savannah as Dragon's Den.

The nub of the appellant's contention, as already discussed earlier, relates to the format of the television program Dragon's Den.

In Cairns Foods Ltd v Netrade Marketing (Pvt) Ltd SC106-21 MATHONSI JA, after considering the Woolworth authority (Woolworth & Co (Zimbabwe) Ltd v The W Store & Anor 1998 (2) ZLR 402 (S)), aptly stated as follows at p11 of the judgment:

“It is apparent that passing off seeks to protect a product from the deceptive tendencies of a competitor who represents its product as that of the other. As a result of such deception or misrepresentation, there should be injury or damage to reputation. Therefore, proof of reputation is a pre-requisite for passing off to be established. See also Zimbabwe Gelatine (Pvt) Ltd v Cairns Foods (Pvt) Ltd 2003 (1) ZLR 352 (S) at 55G.”

In casu, there has been no proof that the appellant had goodwill in the Dragon's Den format. The appellant has neither proved misrepresentation of its format. The appellant has also not established or placed any cogent evidence of any damage suffered by it as a result of Simba Savannah.

The claim for passing-off was therefore bound to fail and was thus rightly dismissed by the court a quo.

It seems to me, therefore, that, on the facts and contentions presented to the court a quo, no protection is accorded by the Copyright and Neighbouring Rights Act [Chapter 26:05] to the appellant's format, and that the decision of the court a quo cannot be upset in respect of the claim for copyright protection.

Similarly, the dismissal by the court a quo of the claim for passing off was justified and there is no basis for its reversal.

It also seems to me that it therefore becomes unnecessary, in the circumstances, to consider whether the requirements for the granting of an interdict were satisfied....,.

For the above reasons, the appeal has no merit. Costs will follow the cause. However, no basis has been established for the awarding of costs on the higher scale. It is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

The court a quo was criticised for having regard to Green v Broadcasting Corporation of New Zealand [1989] All ER 1056; [1989] 3 NZLR 18 (New Zealand: Judicial Committee of the Privy Council).The Court of Appeal stated at p20:“The alternative formulation of the appellant's claim relies upon the 'dramatic format' ...

The court a quo was criticised for having regard to Green v Broadcasting Corporation of New Zealand [1989] All ER 1056; [1989] 3 NZLR 18 (New Zealand: Judicial Committee of the Privy Council).

The Court of Appeal stated at p20:

“The alternative formulation of the appellant's claim relies upon the 'dramatic format' of 'Opportunity Knocks' by which their Lordships understand is meant those characteristic features of the show which were repeated in each performance. These features were, in addition to the title, the use of the catchphrases 'For [name of competitor], Opportunity Knocks' 'This is your show folks, and I do mean you' and 'Make your mind up time' the use of a device called a 'clapometer' to measure audience reaction to competitors performances and the use of sponsors to introduce competitors.

It was this formulation which found favour with GALLEN J.

It is stretching the original use of the word 'format' a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were 'structure' or 'package'. This difficulty in finding an appropriate term to describe the nature of the 'work' in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show, the questions and answers in the quiz show etc) and identified as an 'original dramatic work'.

No case was cited to their Lordships in which copyright of the kind claimed had been established.

The protection which copyright gives creates a monopoly and 'there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world': Tate v Fullbrook [1908] 1 KB 821, per FARWELL J at 832.

The subject-matter of the copyright claimed for the 'dramatic format' of 'Opportunity Knocks' is conspicuously lacking in certainty.

Moreover, it seems to their Lordships, that, a dramatic work must have sufficient unity to be capable of performance and that the features claimed as constituting the 'format' of a television show, being unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential characteristic.”…,.

It cannot be denied, that, there are remarkable similarities between the claim in Green v Broadcasting Corporation of New Zealand [1989] All ER 1056; [1989] 3 NZLR 18 (New Zealand: Judicial Committee of the Privy Council) and the instant matter.

The appellant's claim emanates from what it says are unique characteristics of its program or television show called Dragon's Den. Its complaint relates to the alleged copying of style and layout of the show, Dragon's Den.

As rightly observed by the first respondent's counsel, the only difference is that Green claimed that his format constituted a dramatic work, whereas, in casu, the appellant claims that its format constitutes an audio-visual work.

In terms of section 2 of the Copyright and Neighbouring Rights Act [Chapter 26:05] 'dramatic work' “does not include an audio-visual work.”

In my view, even if no consideration were to be given to Green v Broadcasting Corporation of New Zealand [1989] All ER 1056; [1989] 3 NZLR 18 (New Zealand: Judicial Committee of the Privy Council), it has, in any event, already been otherwise demonstrated earlier herein that the appellant's format of Dragon's Den is not afforded copyright protection.

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Unfair Trade Competition, Copyright Infringements, Trademark Infringements, Passing Off and Restraint of Trade

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L
Ruled By: UCHENA J

HH150-09 : SOUTHBAY REAL ESTATE (PVT) LTD vs SOUTHBAY PROPERTIES (PVT) LTD and G RATISSO and CHIEF REGISTRAR OF COMPANIES
Ruled By: MAKARAU JP

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU
Ruled By: HUNGWE J

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD
Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

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Law Portal Zimbabwe

Unfair Trade Competition, Copyright Infringements, Trademark Infringements, Passing Off and Restraint of Trade

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L Ruled By: UCHENA J

HH150-09 : SOUTHBAY REAL ESTATE (PVT) LTD vs SOUTHBAY PROPERTIES (PVT) LTD and G RATISSO and CHIEF REGISTRAR OF COMPANIES Ruled By: MAKARAU JP

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O. Ruled By: BERE J

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU Ruled By: HUNGWE J

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT Ruled By: MUTEMA J

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

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Law Portal
Zimbabwe

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L
Ruled By: UCHENA J

HH150-09 : SOUTHBAY REAL ESTATE (PVT) LTD vs SOUTHBAY PROPERTIES (PVT) LTD and G RATISSO and CHIEF REGISTRAR OF COMPANIES
Ruled By: MAKARAU JP

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU
Ruled By: HUNGWE J

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD
Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA