| Property Trader publishers lose case |
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December 1 2005 at 01:01pm By Fatima Schroeder The publishers of Property Trader magazine have lost a Cape High Court attempt to prevent a competing magazine from using a similar design for property advertisements. Freefall Trading 211 publishes and distributes Property Trader weekly in the Western Cape. PropLink Publishing publishes and distributes a similar magazine, called SA PropLink.co.za. Initially PropLink's magazine was distributed in Gauteng, Mpumalanga, North West and Limpopo, but it expanded to the Western Cape in August. The magazines follow a similar format and advertise properties for sale on behalf of estate agencies for a fee. They are available free of charge to the public. Three of PropLink's employees, Alvené Swanepoel, Randall Weaver and Mark Hurter, were previously employed by Property Trader. Property Trader alleged that PropLink was competing with it unlawfully and that Swanepoel, Weaver and Hurter have breached confidentiality agreements with the company. The company argued that PropLink unlawfully used Property Traders' confidential information as a "springboard" to launch their competing product. It also claimed PropLink had infringed its copyright. Property Trader applied for an interdict to prevent Swanepoel, Weaver and Hurter from remaining in PropLink's employment and to prevent PropLink from infringing its copyright to the layouts of the advertisements in the magazine. Property Trader claimed that the advertisements in PropLink's magazine were reproductions or adaptations of the original works Swanepoel had authored for Property Trader. But Swanepoel denied copying the advertisements and PropLink argued that similarities were to be expected because the same software package was used, which is freely available in the computer trade, and clients were common between the two companies. In addition, some of the properties advertised were the same as those in Property Trader. They also denied that Property Trader held the copyright for the original work, arguing that the estate agencies who commissioned the work for a fee were the owners of the copyright. The court agreed with this argument and found Property Trader was not the owner of the copyright. In a judgment handed down on Tuesday, Justice Bennie Griesel said the confidentiality agreements Swanepoel and Hurter had signed did not contain restraint of trade clauses "in the conventional sense". He also found that Property Trader was not entitled to enforce a restraint of trade clause against Weaver.
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