Crocs bitten back in SA High Court decision

In MORESPORT (PTY) LIMITED v COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE AND OTHERS (36853/2006) [2008] ZAGPHC 95 (27 MARCH 2008), the High Court has set aside a search and seizure warrant issued by a magistrate in respect of 5015 pairs of alleged counterfeit CROC beach model shoes. The search and seizure warrant had been issued ex parte and was set aside because Crocs had failed to disclose a defence raised by Moresport in correspondence with Crocs' attorneys. The Court held that the defence was relevant and material and should have been disclosed. The legal teams included Senior and Junior Counsel for both Moresport and Crocs.

The defence raised by Moresport was that its actions were lawful under Section 15(3A) of the Copyright Act 98 of 1978 (general exceptions from protection of artistic works). The judge relied on National Director of Public Prosecutions v Basson 2002 1 SA 419 (SCA): "where and order is sought ex parte it is well established that the utmost good faith must be observed. All material facts must be disclosed which might influence a court in coming to its decision and the withholding of such facts entitled a court to set aside an order."

Afro-IP reported on a similar Croc case involving Shoprite Checkers here. The earlier decision (in favour of Crocs) was handed down by the Cape High Court whereas this case found itself in the High Court (Transvaal Provincial Division). Afro-IP also notes that the supplier of Moresport, Holey Shoes is involved in litigation with Crocs Inc in other jurisdictions - one reason why this may have been an important strategic decision for both Holey and Crocs.