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Destiny Charter Schools Proprietary Limited v Destiny Girls College Proprietary Limited q (CT0014Jan2018) [2018] COMPTRI 34 (9 May 2018)

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COMPANIES TRIBUNAL

REPUBLIC OF SOUTH AFRICA

                                                                                                CASE NO: CT0014JAN2018

In the matter between:

DESTINY CHARTER SCHOOLS PROPRIETARY LIMITED                            APPLICANT

(Registration number: 2016/022504/07)

and

DESTINY GIRLS COLLEGE PROPRIETARY LIMITED                               RESPONDENT

(Registration number: 2016/128152/07)



Date of hearing:                             13 April 2018

 

Decision handed down:               09 MAY 2018

DECISION

INTRODUCTION

[1] This is an application in terms of section(s) 160 (3) (b) (ii)[1]and 180 (1)[2]  of the Companies Act No. 71 of 2008 (‘’the Act’’) read together with Regulation 142[3] of the Companies Regulations, 2011.

[2] This application was heard on 13 April 2018 at the Companies Tribunal (‘’the Tribunal’’) offices in Pretoria. Mr. Mbongeni Mhlanga the director of the Applicant represented the Applicant. Mr. Nqaba Ncube the director of the Respondent together with Mr. Irish Johannes Ngwenya represented the Respondent.

[3] The Applicant applies for an order that the Respondent be ordered to change its name ‘’DESTINY GIRLS COLLEGE’’ to one which does not incorporate and is not confusingly and/or deceptively similar to its name ‘’DESTINY CHARTER SCHOOLS’’.

BACKGROUND

[4] The Applicant is Destiny Charter Schools Proprietary Limited, a private company duly incorporated in terms of the Act, with its registered address at No. 19 Clarence Street, Troyeville, Johannesburg, Gauteng and place of business at No. 49 Goud Street, Corner Marshall Street, Johannesburg, Gauteng.

[5] The Respondent is Destiny Girls College Proprietary Limited, a private company incorporated in terms of the Act, with its registered address at No. 79 Browning Street, Fairview, Johannesburg, Gauteng and place of business at No. 178 President Street, Doornfontein, Johannesburg, Gauteng.

[6] The Applicant filed an objection to the name ‘’DESTINY GIRLS COLLEGE’’ in terms of regulation 142 (1) (a)[4] and (1) (b)[5] of the Act.

APPLICANT’S RELIEF

[7] The applicant seeks the following relief:

‘’THE RESPONDENT TO USE A DIFFERENT NAME THAT DOES NOT CONFUSE OUR CLIENTS OR TARNISH OUR REPUTATION’’

APPLICABLE LAW

[8] 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

[9] 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

[10] The name ‘’DESTINY CHARTER SCHOOLS’’ is a registered name of a private company DESTINY CHARTER SCHOOLS PROPRIETARY LIMITED.

[11] The above-mentioned private company, the Applicant, was registered on 20 January 2016 with registration number 2016/022504/07.

[12] The Respondent DESTINY GIRLS COLLEGE PROPRIETARY LIMITED a private company was registered on 05 April 2016 with registration number 2016/128152/07.

[13] The first issue is whether the name of the Respondent ‘’DESTITY GIRLS COLLEGE’’ is the same as the registered name of the Applicant ‘’DESTINY CHARTER SCHOOLS’’ and whether the name of the Respondent is confusingly similar to the name of the Applicant.

[14] The second issue is whether the name DESTINY GIRLS COLLEGE 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.

[15] The Appellant has to show in terms of section 11 (2) (a) that the company name of the Respondent is the same as the appellant’s registered name or in terms of section 11 (2) (b) of the Act that the company name of the Respondent is confusingly similar to the appellant’s registered name or that in terms of section 11 (2) (c) of the Act that the company name of the Respondent falsely implies or suggests, or is such as would reasonably mislead a person to believe incorrectly that the Respondent is part of, or associated with, the appellant.

FINDING

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

[17] 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."

[18] Having considered the Applicant and Respondent’s arguments it is my considered view that the name of the Respondent is the same as the name of the Applicant and is confusingly similar to the name of the Applicant.

[19] Further, the name of the Respondent would reasonable mislead a person to believe incorrectly, that the Respondent is part of, or associated with the Applicant.

[20] Furthermore, the name of the Respondent does not comply with the requirements of section 11 (2) of the Act. Section 11 (2) of the Act provides that the name of a company must not be confusingly similar or the same as the name of another company or falsely implies or suggests, 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.

ORDER

In the result the following order is made:

a)               The application is granted.

b)               The Respondent is directed to change its name to one which does not incorporate and is not confusingly and/or deceptively similar to DESTINY CHARTER SCHOOLS.

c)               The Respondent is further directed to file a notice of an amendment of its Memorandum of Incorporation, within sixty (60) days of receipt of this order.

d)               The Respondent is hereby exempted from the requirement to pay the prescribed fee for filing the notice of amendment.

e)               Should the Respondent fail to comply with the relief ordered above, that the Companies and Intellectual Property Commission be ordered to change the Respondent's name to its registration number, as the Respondent's interim company name on the Companies Register.

f)                This Order must be served on the Respondent and the Companies and Intellectual Property Commission.

g)               Any other person with an interest in the name that is the subject of this application may, within twenty (20) business days after receiving the Notice of this Order or decision, apply to a court to Review the Notice of this Order or decision.

 

______________________________

MMOLEDI MALOKANE

(MEMBER OF COMPANIES TRIBUNAL OF SOUTH AFRICA)

Date: 09 MAY 2018

 



[1]  Section 160 (3) (b) (ii) 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 may make an administrative order directing a company to choose a new name, and 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 filling the notice of amendment contemplated in this paragraph.’’

[2] Section 180 (1) reads as follows: The Companies Tribunal must conduct its adjudication proceedings contemplated in this Act expeditiously and in accordance with the principles of natural justice,’’

[3]  Regulation 142 (1) of the Companies Regulations, 2011 reads as follows: ‘’A person may apply to the Tribunal for an order in respect of any matter contemplated by the Act, or these Regulations,’’

[4]   Regulation 142 (1) (a) of the Companies Regulations, 2011 reads as follows: ‘’A person may apply to the Tribunal for an order in respect of any matter contemplated by the Act, or these Regulations, by completing and filing with the Tribunal’s recording officer an application in form CTR 142;’’

[5]  Regulation 142 (1) (b) of the Companies Regulations, 2011 reads as follows:: ‘’A person may apply to the Tribunal for an order in    respect of any matter contemplated by the Act, or these Regulations, by completing and filing with the Tribunal’s recording officer a supporting affidavit setting out the facts on which the application is based.’’