The applicant and respondents were competitors in the industry of perimeter security and fencing. Objecting to the respondents' use of the applicant's trademark "ClearVu" for its internet advertising, the applicant sought a final interdict restraining the respondent from using the trademark "ClearVu" as a keyword in the Google AdWords system, or as a metatag.

The applicant relied on two common law causes of action, passing off and "leaning on". While the latter does not form part of our law, the applicant urged the court to develop the common law in terms of section 173 of the constitution. Passing­off consists of a false representation made by one trader. The applicant was also unsuccessful in the passing off claim, as it was unable to satisfy the requirements of deception or confusion. Its case was dismissed with costs.