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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

(“The Tribunal”)

CASE NO: CT012JUL2016

In an Application in terms of Sections 160; 11 (2);

and 12 of the Companies Act 71 of 2008 (“the Act”)

for a determination that proposed name PLACEMENT DIREKT

be reserved as a Company name in favour of the Applicant.

In the matter between:

VERENA KOCH                                                                                                 APPLICANT

AND

CIPC (COMPANIES AND INTELLECTUAL

PROPERTY RIGHTS COMMISSION                                                            RESPONDENT

Coram: Khatija Tootla

 

Decision handed down on 17 November 2016

DECISION

INTRODUCTION:

[1] The Applicant, Verena Koch, adult female, […] W., […] E., Sundowner, Gauteng made an application for the reservation of the company name PLACEMENT DIREKT and it was refused on 24 June 2016.

[2] The Respondent is the Commission of Intellectual and Property Rights Commission, Pretoria.

BACKGROUND:

[3] On 24 June 2016, CIPC notified the applicant of the refusal to reserve the name PLACEMENT DIREKT. The CoR 9.5 notice states that the name is in conflict with the following comparative names: DIRECT PLACEMENT SOLUTIONS; LUZETAS HELPING HANDS DIRECT PLACEMENT on the CIPC register; it is confusingly similar to these names in terms of Section 11(2) (b) and that a distinguishing element be inserted that will assist in differentiating the Applicant’s name from the aforementioned.

[4] The applicant requests the Tribunal to approve the reservation of the proposed name PLACEMENT DIREKT in substitution for the decision of the CIPC, based on the fact that the Direct Placement Solutions is under voluntary liquidation which will no longer be trading under that name in terms of “Annexure B”. In addition, the name LUZETAS HELPING HANDS DIRECT PLACEMENT as the company does not use the full name and is trading as Luzeta’s Helping Hands as per Annexure “C & D”.

[5] There is evidence on record that this Application has been served on CIPC but there is no evidence of a response from CIPC. Be that as it may, the CoR 9.5 notice suffices as the view of CIPC.

EVALUATION:

[6] The CoR 9.5 notice issued by CIPC speaks of comparison with the proposed name and identifies two conflicts as mentioned in para 3 above. It is interesting to note that nowhere in the Act is there any mention of comparative names as a  ground to refuse reservation   of a proposed company  name. Section 11 and 12 read together with regulations 8 to 13 of the Companies Regulations, 2011 are the pertinent sections and regulations which apply to name registration and reservation; and which provides for a mechanism to approach this Tribunal for relief in terms of section 160 of the Act, when a situation such as this arises.

[7] Section 11(2) m e n t i o n s , amongst others, company names which are the same or confusingly similar to other company names or names which falsely imply or suggest, or be such as would reasonably mislead a person to believe incorrectly, that the company, is part of, or associated with, any other person or entity”. CIPC does not state that the name proposed which is PLACEMENT DIREKT is the same as those that exist on the CIPC register.

[8] On the CoR 9.5 form, CIPC apart from making a comparison with other names on the CIPC register, concludes that the name/s proposed by the Applicant cannot be approved due to the fact that it is confusingly similar to names already registered in the name register in particular in terms of Section 11 (2) (b) of the Act.

[9] Section 12 (2) of the Companies Act provides that the CIPC must (my emphasis) reserve a name unless the applicant is prohibited to use the name by virtue of Section 11 (2) (a) or if the name applied for is already reserved (Section 12(2)(b). Section 11(2) (a) speaks of a name which is the “same” and not confusingly similar. Secondly, if the name is already reserved as set out in Section 12(2) (b), then CIPC must follow the process set out in Section 12 (3). In this instance, the proposed name has not already been reserved by CIPC.

[10] Furthermore, if, upon reserving the name, there are reasonable grounds for considering that the name may not comply with Section 11 (2) (b) or (c), the CIPC may require the applicant to serve a copy of the application and name reservation on the relevant person (this is any person who may have an interest in the use of the name). This person on whom the notice is to be served can apply to the Tribunal for a determination or an order in terms of Section 160 which deals with disputes concerning reservation or registration of company names.

[11] However, if read with the regulations, the CIPC has one of two alternatives in respect of names in Sections 11 (2) (b) and (c). It seems CIPC can refuse to reserve the name if it does not satisfy any (my emphasis) of the requirements of Section 11; also   sub-sections (2) (b) and (c); Regulation 9 (3) (c) (i). However, this Regulation seems to be in conflict with Section 12 (2) that provides it must (my emphasis) reserve the name, except for names as mentioned in Section 12 (2) (a) and (b) and it may be ultra vires. In addition, the rules are the rules to the Act and the Act takes precedence over the Rules.

[12] Secondly, it must register the name (except for names as mentioned in Section 12 (2) (a) and (b), which includes names in terms of s 11 (2) (a)) but if there are reasonable grounds for considering that the name may be inconsistent with the requirements of s 11 (2) (b) or (c), it may require the applicant to serve a copy of the application and name reservation on any particular person, or class of persons, named in the notice, on the grounds that the person or persons may have an interest in the use of the name that has been reserved for the applicant; and that person can apply to the Companies Tribunal in terms of Section 160 to determine if the name satisfies the requirements of the Act . (Refer Renier A Schuld vs Companies and Intellectual Property Commission CT002Oct2014; See also notes on Section 12 in Henochsberg on the Companies Act 71 of 2008.)

[13] In the circumstances, it is not the domain of CIPC to pronounce on this issue and to refuse reservation of the company, unless it does so in terms of Section 12 (2) (b) i.e. that the name has already been reserved.

FINDING:

[14] In accordance with Section 12 (2) of the Act, CIPC must reserve the name “PLACEMENT DIREKT “.

[15] Copy of this order is to be served on the compliance department of CIPC.

 

k. tootla (electronically signed)

 

______________________________

KHATIJA TOOTLA

Member of the Companies Tribunal

17 November 2016

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