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IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

CASE NO: CT008APR2018

In the matter between:

MABRA KONSTRUKSIE (PTY) LTD                                                                 APPLICANT

(Registration number: 1999/016417/07)

And

MABRA CONSTRUCTION (PTY) LTD                                                         RESPONDENT

(Registration number: 2016/149758/07)

 

PRESIDING MEMBER:

Ms Agnes Tsele-Maseloanyane

DATE OF ISSUE:

26 June 2018

 

 

ORDER AND REASONS

 

The Applicant is Mabra Konstruksie (Pty) Ltd a private company duly incorporated in accordance with the company laws of the Republic of South Africa with registration number 1999/016417/07.

The Respondent is Mabra Contruction (Pty) Ltd a company incorporated in terms of the company laws of the Republic of South Africa with registration number 2016/149758/07.

 

APPLICATION

 

This is an application in terms of section 160 of the Companies Act No 71 of 2008 (the Act) for a determination and an order that the Respondent’s name does not satisfy the requirements of section 11 (2) of the Act and that the Companies Tribunal should direct the Respondent to choose a new name as provided for in section 160 (3) (b) (ii) of the Act.

 

PROCECURAL REQUIREMENTS

 

The Applicant filed the application for relief with the Companies Tribunal on 10 April 2018.  The affidavit in support of the application for relief is deposed by Willem Jacobus Smit, being the Director of the Applicant.  On 16 April 2018 the application for relief was served on the Respondent by registered post.  Copy of the Post Office Slip is attached in the application for default order marked as Annexure B.  On 12 June 2018 the Applicant applied for default order in terms of Regulation 153 of the Companies Tribunal to grant an order as applied for the application of relief.

 

APPLICANT’S SUMISSIONS

 

The Deponent submitted that the Respondent’s company name is confusingly similar to the Applicant’s company name and in contravention of section 11 (2) (b) of the Act and the Applicant and Respondent uses the word “Mabra” and they reflect that they are both in the construction industry, the Applicant’s Konstruksie is in Afrikaans and the Respondent’s Construction is in English.

The Deponent further submitted that the name of the Respondent will reasonably mislead a person to believe that the Respondent is either part of, or in association with the Applicant and in contravention of section 11 (2) (c) of the Act and that the use of the Respondent’s company in course of trade could damage the goodwill of the Applicant and divert customers from the Applicant to the Respondent.  The Deponent submitted that the existence of the Respondent came to the attention of the Applicant in September 2017 and that the Applicant never received any notice of the registration of the Respondent from the Companies and Intellectual Property Commission (CIPC) or the Respondent.

RELIEF SOUGHT

 

The Deponent requests the Companies Tribunal:

1. to change the Respondent’s company name to one which does not incorporate the word “Mabra” or any other mark confusingly and/or deceptively similar to the Applicant’s company name;

2. should the Respondent fail to comply with the above, the CIPC be ordered to change the Respondent’s company name to 2016/149758/07 (Pty) Ltd as the Respondent’s interim company name on the companies register.

 

CASE ANALYSIS

 

The Respondent’s company name MABRA CONSTRUCTION (PTY) LTD is confusingly similar to the applicant’s company name MABRA KONSTRUKSIE (PTY) LTD, the only difference is that the Applicant’s remaining portion being KONSTRUKSIE is in Afrikaans and it means construction when translated to English and from the meaning of the word it can be assumed that both the Applicant and the Respondent are in the construction industry.  The mere fact that the Applicant’s CONSTRUCTION is in Afrikaans and the Respondent is in English does not serve to distinguish the Respondent from the Applicant especially because they are in the same industry and since the dominant and the memorable portion of the Respondent’s company name and the Applicant’s company name is the word MABRA.

In the light of the fact that the Respondent’s company name MABRA CONSTRUCTION PTY (LTD) is confusingly similar to the Applicant’s company name MABRA KONTRUKSIE, the Respondent’s company name will falsely imply or suggest and reasonably mislead a person to believe incorrectly, that the Respondent is part of, or associated with the Applicant while that is not the case.

 

ORDER

 

The following order is granted:

1. the Respondent is directed to change its name to one which does not incorporate the word Mabra and file a notice of an amendment of its Memorandum of Incorporation with CIPC in 60 days from the date of this order;

2. the Respondent be exempted from the requirement to pay the prescribed fee for filing the notice of amendment;

3. in the event that the Respondent fails to comply with the Order set out in 1 above, that CIPC be directed in terms of section 160 (3) (b) (iii) and section 14 (2) of the Act to change the Respondent’s name to 2016/149758/07 (Pty) Ltd as the Respondent’s interim company name on the companies register.

 

 

 

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AGNES TSELE-MASELOANYANE

COMPANIES TRIBUNAL

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