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COMPANIES TRIBUNAL

REPUBLIC OF SOUTH AFRICA

                                                                                                CASE NO: CT001MAR2018

In the matter between:

EZASEKASI PROJECTS PROPRIETARY LIMITED                                        APPLICANT

(Registration number: 2014/244724/07)

and

EZASEKASI CAR WASH CREW PROPRIETARY LIMITED                        RESPONDENT

(Registration number: 2018/077418/07)

 

Decision handed down on 25 APRIL 2018

DECISION

INTRODUCTION

[1] This is an application in terms of section 160 (3) (b) (ii)[1] and Regulation 153[2] of the Companies Act No. 71 of 2008 (‘’the Act’’).

[2] The Applicant applies for a default order that the Respondent be ordered to change its name to one which does not incorporate and is not confusingly and/or deceptively similar to its name ‘’EZASEKASI PROJECTS’’.

BACKGROUND

[3] The Applicant is Ezasekasi Projects Proprietary Limited, a private company duly incorporated in terms of the Act, with its principal place of business at No 9727 Mmethi Street, Dobsonville Extension 3, Soweto, Johannesburg, Gauteng.

[4] The Respondent is Ezasekasi Car Wash Crew Proprietary Limited, a private company incorporated in terms of the Act, with its registered address at No. 9510 Mogwai Street, Soweto, Johannesburg, Gauteng.

[5] The Applicant filed an objection to the name ‘’EZASEKASI CAR WASH’’ in terms of regulation 142 (1) (a)[3] and (1) (b)[4] of the Act.

[6] The applicant seeks the following relief:

‘’An order to tell Thato and Thuli to stop using the name EZASEKASI / EZASEKASI CAR WASH’’

APPLICABLE LAW

[7] Before I deal with the objection and/or application filed, I wish to highlight what I believe to be the relevant provisions of the Act.

Section 11 (2) (a) (b) and (c) of the Act

[8] Section 11 (2) (a), (b) and (c) reads as follows:

The name of a company must –

(a)      not be the same as - 

(i)      the name of another company, domesticated company, registered external company, close corporation or co-operative;

(ii)     a name registered for the use of a person, other than the company itself or a person controlling the company, as a defensive name in terms of the section 12 (9), or as a business name in terms of the Business Act, 1960 (Act 27 of 1960), unless the registered user of that defensive name or business name has executed the necessary documents to transfer the registration in favour of the company;

(iii)    a registered trade mark belonging to a person other than the company, or mark in respect of which an application has been filed in the Republic for registration as a trade mark or a well-known trade mark as contemplated in section 35 of the Trade Marks Act, 1993 (Act 194 of 1993), unless the registered owner of that mark has consented in writing to the use of the mark as the name of the company;

(iv)         a mark, word or expression the use of which is restricted or protected in terms of the Merchandise Marks Act, 1941 (Act 17 of 1941), expect to the extent permitted by or in terms of that Act;

(b)     not be confusingly similar to a name, trade mark, mark, word or expression contemplated in paragraph (a) unless –

(i)        in the case of name referred to in paragraph (a) (i), each company bearing any such similar name is a member of the same group of companies;

(ii)       in the case of a company name similar to defensive name or to business name referred to in paragraph (a) (ii), in the company, or a person who controls the company, is the registered owner of that defensive name or business name;

(iii)       in the case of a name similar to a trade mark or mark referred to in paragraph (a) (iii), the company is the registered owner of the business name, trade mark, or mark, or is authorised by the registered owner to use it; or

(v)          in the case of a name similar to a mark, word or expression referred to in paragraph (a) (iv), the use of that mark, work or expression by the company is permitted by or in terms of the Merchandise Marks Act, 1941;

(c)     not falsely imply or suggest, or be such as would reasonably mislead a person to believe incorrectly, that the company –

(i)        part of, or associated with, any other person or entity;

(ii)       is an organ of state or a court, or is operated, sponsored, supported or endorsed by the State or by any organ of state or a court;

(iii)      is owned, managed or conducted by a person or persons having any particular educational designation or who is a regulated person or entity;

(iv)      is owned, or operated, sponsored, supported or endorsed by, or enjoys the patronage of, any –

(aa)        foreign state, head of state, head of government or administration or any department of such a government or administration; or

(bb)        international organisation; and

(cc)         not include any word, expression or symbol that, in isolation or in context within the rest of the name, may reasonably be considered to constitute –

(i)        propaganda of war;

(ii)       incitement of imminent violence; or

(iii)      advocacy of hatred based on race, ethnicity, gender or religion, or incitement to cause harm.’’

EVALUATION

[9] The supporting affidavit submitted by the Deponent Palesa Kutu reads as follows:

‘’ I have been using the name EZASEKASI for a very long time and they knew  that I have also marketed the name and lost lots of money in branding the cars, walls, banners and social media, radios. So can they stop or change their name as it is really confusing my clients as the name is the same …’’

[10] The first issue is whether the name ‘’EZASEKASI CAR WASH’’ is the same as that of the Applicant and whether the name of the Respondent is confusingly similar to that of the Applicant.

[11] The second issue is whether the name ‘’EZASEKASI CAR WASH ’’ would falsely imply or suggest, or be as would reasonably mislead a person to believe incorrectly, that the Respondent is part of, or associated with the Applicant.

FINDING

[12] The Applicant brought an objection in terms section 11 (2) of the Act.

[13] The powers for determination of the Tribunal are set out in section 160 (3) of the Act which reads as follows:

“After considering an application made in terms of subsection (1), and any submissions by the applicant and any other person with an interest in the name or proposed name that is the subject of the application, the Companies Tribunal -

(a)      must make a determination whether that name, or the reservation, registration or use of the name, or the transfer of the reservation or registration of the name, satisfies the requirements of this Act; and

(b)      may make an administrative order directing -

(i)           …

(ii)          a company to choose a new name, and to file a notice of an amendment to its Memorandum of Incorporation, within a period and on any conditions that the Tribunal considers just, equitable and expedient in the circumstances, including a condition exempting the company from the requirement to pay the prescribed fee for filing the notice of amendment contemplated in this paragraph."

[14] The Applicant did not produce evidence in support of its allegation in relation to the use, branding, advertisement and marketing of the name ‘’EZASEKASI’’ and/or ‘’EZASEKASI CAR WASH’’ or any other evidence.

[15] Further, no evidence was furnished in which the use of the name ‘’EZASEKASI’’ would reasonably mislead a person and/or consumers to believe that the Respondent is part of or associated with the Applicant.

[16] Furthermore, no evidence was furnished in which the use of the name(s) EZASEKASI’’ and/or ‘’EZASEKASI CAR WASH’’ would reasonably mislead a person and/or consumers to believe that the Respondent is part of or associated with the Applicant.

[17] In my view the application is not sufficient. Therefore the application cannot succeed due to insufficient information, to conclude that consumers and/or customers would reasonably believe that the Respondent is part of or associated with the Applicant, in support of its application.

[18] However, against the aforementioned finding, I am of the recommendation that the Applicant should consider re-applying on the basis that the application did not include satisfactory evidence and/or information. This should not be understood to be legal advice on the matter or even to purport to bind other members of this Tribunal who may be seized with any future application(s) by the Applicant.

ORDER

In the result the following order is made:

a)            The Application is dismissed.

______________________________

MMOLEDI MALOKANE

(MEMBER OF COMPANIES TRIBUNAL OF SOUTH AFRICA)

Date: 25 APRIL 2018

 

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