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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

COMPANIES TRIBUNAL

REPUBLIC OF SOUTH AFRICA

                                                                                                CASE NO: CT006MAY2018

In the matter between:

EDGE CAPITAL PROPRIETARY LIMITED                                                       APPLICANT

(Registration number: 1999/022409/07)

and

EDGE GROWTH CAPITAL PROPRIETARY LIMITED                                 RESPONDENT

(Registration number: 2017/148177/07)

Decision handed down on 02 JULY 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 ‘’EDGE CAPITAL’’.

BACKGROUND

[3] The Applicant is Edge Capital Proprietary Limited, a private company duly incorporated in terms of the Act, with its registered address at Edge House, 03 Heuwelkruin Close, Bellville, Western Cape.

[4] The Applicant operates its business as a financial services provider within the investment industry. The application is brought by Ryan Wiborg, a director of the Applicant.

[5] The Respondent is Edge Growth Capital Proprietary Limited, a private company incorporated in terms of the Act, with its registered address at Investment Place Office Park, 10^th Road Hyde Park, Johannesburg, Gauteng.

[6] The Applicant filed an objection to the name ‘’EDGE GROWTH CAPITAL’’ in terms of regulation 142 (1) (a)[3] and (1) (b)[4] of the Act.

[7] The applicant seeks the following relief:

‘’Change of name / Name dispute’’

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 Deponent to the Applicant's papers is Ryan Wiborg, who avers that he is the director of the Applicant however does not confirm in his affidavit whether he has been authorised by the Applicant to depose to his affidavit and to represent it in these proceedings. The Deponent to the Applicant’s affidavit in paragraphs 1, 3 and 4 states that:

‘’        I, the undersigned, Ryan Wiborg, ID number 840830 5097 088, director of and representing Edge Capital (Pty) Ltd, registration number 1999/022409/07, do hereby declare that the facts contained herein are within my own personal knowledge and are to the best of my belief both true and correct unless specifically indicated otherwise’’

Edge Capita (Pty) Ltd, a private company…

The applicant has been established with branding of Edge for over 21 years and registered with the Financial Services Board (‘’FSB’’) with corresponding licence number 882.

The applicant has been operating in the Investment Industry and as a Financial Services Provider (‘’FSP’’) for the past 21 years where they have built a strong client base and a sound name in this service line within South Africa.’’

[11] The first issue is whether the name ’’EDGE GROWTH CAPITAL’’ is the same as that of the Applicant and whether the name of the Respondent is confusingly similar to that of the Applicant. The second issue is whether the name ’’EDGE GROWTH CAPITAL’’ 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 that:

[14.1]            it has been established with branding of Edge for over 21 years and registered with the Financial Services Board with corresponding licence number: 882.

[14.2]            it has been operating in the investment industry and as Financial Services Provider for the past 21 years and built a strong client base and sound name within the investment industry sector in South Africa.

[15] Further, no evidence was furnished in which the use of the name ‘’EDGE GROWTH CAPITAL’’ 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) ‘’EDGE’’ and/or ‘’EDGE GROWTH CAPITAL’’ 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 in that the relief sought by the Applicant is not supported by facts and evidence.

[18] The Applicant, in my view, failed to make out a case. 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.

[19] 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: 02 JULY 2018

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