Unlawful Competition

Question 1

Matthews v Young

Answer 1

The Appellate Division recognised Aquilian liability for the causing of harm by unlawful competition.

Question 2

Courts have developed the general principles of Aquilian liability into detailed sub-rules within these established categories

Answer 2

o Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd sets out the sub rules for passing off in detail.
o Passing off is the misrepresentation belonging to the complainant.
o The misrepresentation has the potential to cause customers to move from the complainant’s established product or service to the offender’s rival product or service.

Question 3

Forms of unlawful competition

Answer 3

1. Passing off
2. Misappropriation of confidential information or trade secrets
3. Leaning on
4. Wrongful trading conduct outside of the sphere of competition.
5. Wrongful appropriation of trade using the advertising value of a fictional character created by another.
6. Misappropriation of performance

Question 4

Case for the misappropriation of confidential information or trade secrets

Answer 4

Dun and Bradstreet (Pty) Ltd v AS Merchants Combined Credit Bureau (Cape) (Pty) Ltd

Question 5

Case for misappropriation of performance

Answer 5

Schultz v Butt

Question 6

Case for Leaning on

Answer 6

Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd; Oude Meester Group Ltd v Stellenbosch Wine Trust Ltd

Question 7

Wrongfulness involves…

Answer 7

The question of whether the causing of harm offends against the legal criterion of reasonableness or boni mores, a criterion that involves assessing relevant considerations of public policy

Question 8

Damages awarded by Courts..

Answer 8

According to the normal principles that apply to patrimonial harm.