Court interdicts company in solar panel design infringement case

Three registered designs for solar panel mounting brackets on rooftops came under the judicial spotlight, when the owner of the registered designs got wind that a rival company was selling the exact same designs.

Balster Nienhuis, who owns the designs, turned to the Western Cape High Court to interdict Afro Solar Ltd from infringing on his designs.

In dealing with the legal wrangle, Acting Judge DJ Cooke commented that South Africa is a country which enjoys abundant sunshine; however, it also experiences unreliable challenges with electricity supply. 

“It is not surprising that there is a strong demand for solar panels. This demand is fueled by tax incentives and continuing technological advances, leading us to become familiar with solar panels gracing the rooftops of various structures.”

The judge added that this demand for solar panels poses a technical challenge as to how they are to be attached to different kinds of rooftops. He noted that Nienhuis solved this problem by designing brackets for mounting solar panels on three types of roofs – tiled, corrugated, and inverted box rib.

These brackets were marketed and sold by Balster Machinery CC, a corporation trading as Nas Moulds. According to Nienhuis, he was told by the sales manager at Nas Moulds, that there were identical copies of the Nas Moulds brackets at the offices of Africo Solar. 

Upon further investigation it appeared that a company related to Africo Solar, Solar Tech Wholesalers, had purchased substantial numbers of brackets from Nas Moulds. Nienhuis deduced that those behind Africo Solar and Solar Tech Wholesalers had filched his intellectual property.

Africo Solar does not deny that it was selling brackets identical to the Nas Moulds brackets, however, it disputes the claim that this constituted an infringement of Nienhuis’ rights. It argued that the selling of an identical bracket does not by itself constitute a primary act of infringement as the bracket may be used for functions in other design classes. 

Africo Solar alleges that the Nas Moulds brackets could potentially be used in other contexts, for example as a mounting device for shelving, additional support structures, or lighting fixtures, which would fall outside the scope of class 13 in which it was registered. It was also alleged that the brackets were sold to mount geysers and heat pumps.

“While Africo Solar denies the claim that the Nas Moulds brackets are copied, it fails to clarify how it acquired brackets that are identical. The bare denial rings hollow. The inevitable inference is that those in control of Africo Solar and Solar Tech Wholesalers copied or facilitated the copying of the Nas Moulds brackets for their own commercial purposes,” the judge said.

Africo Solar was interdicted from infringing the registered designs. It was further ordered to surrender all these brackets in its possession, while an inquiry into damages was directed.

Cape Times