The respondent's attorneys were Scher Webner & Co, Cape Town, and Lovius, Block, Meltz, Steyn & Yazbek, Bloemfontein.
It seemed also that the notional-user test, deployed by the courts to determine whether or not there has been an infringement of a trade mark, posed difficulties where the actual proven user fell outside of the ambit of the plaintiff's monopoly.
If, in such a case, the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court, and the court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks.
There may be exceptions to this general rule, as where the allegations or denials of the respondent are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers.
It also appeared that the application of the notional-user test to determine infringement of a trade mark posed certain difficulties.