Patlansky & Co Ltd v Patlansky Bros [1914] ZATPD 91 (19 August 1914)

Trade name.-Sale of business.-New business under same name.Passingoff goods under such name.-lnterdict.-Whether sale
of business incfodes trade name.-Goodwill.Evidence.-Word erased in document.-Effect upon construction.

Four brothers formed a partnership in 1903 under the name of Patlansky Bros. with the object of importing and vending certain articles, and carried on business at Johannesburg, Durban and Port Elizabeth. In February, 1913, one of the brothers (A. L. Patlansky) retired from the firm, assigning to the remaining partners all his share and interest in the business and "the property, assets, credits, effects and goodwill thereof." In December, 1913, Chas. Patlansky also retired and by deed ceded to the two remaining partners his one-third "share and interest of and in the said business of the said partner, ship and of and in the property, estates, credits, effects and  thereof." Between the words "and" and "thereof" the word "goodwill" appeared with a line drawn through it properly initialled. Chas. Patlansky then started a similar business in partnership with A. L. Patlamky under the name of Patlansky Bros., Durban, assigning to the new firm such interest as he had in the goodwill of the firm from which he had retired; they then in March, 1914, ceded all their rights to Chas. Pathwsky & Cu., which company
carried on a similar business at Johannesburg. The company was selling goods of the same class as dealt in by the firm and bearing the name of Patlansky Bros. Held, in an application by Patlansky Bros. for an order restraining the company from selling goods marked " Patlansky Bros." or from trading under such name, that the test to be applied was whether one person represented his goods as the goods of another perso11, which fact must be established before an order could be granted. Held, further, that the use of the name "Patlansky Bros." was prima facie proof of the passing off by the company of their goods as the goods of the firm, and that the firm was entitled to an, interirn interdict restraining the oompany from ,so selling their goods. Per Brigtowe, J. : The deed of cession by Chas. Patlansky has to be construed as if the word " goodwill" had never been inserted therein. Held, further, that Chas. Patlansky under the deed of cession also transferred his interest in the firm's name, and that he therefore could not thereafter confer any right on the company to use that name.