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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

CASE NO: CT015APR2018

In the matter between:                                                                

BIDVEST INDUSTRIAL HOLDINGS (PTY) LIMITED                                           Applicant

(Registration Number: 1990 / 003829 / 07)

and

PROUDLY BIDVEST (PTY) LIMITED                                                               Respondent

(Registration Number: 2016 / 283804 / 07)

 

Issue(s) for determination: This is an objection to the registration of the company name Proudly Bidvest (Pty) Limited in terms of sections 11(2)(a), 11(2)(b), 11(2)(c) and 160 of the Companies Act, 2008 (Act No. 71 of 2008) read with regulations 13 and 142 of the Companies Regulations, 2011.

Coram:                                                           Lindelani Daniel Sikhitha

Date of handing down of decision:            17 August 2018

DECISION (Reasons and Order)

INTRODUCTION

[1] The Applicant in this matter is Bidvest Industrial Holdings (Pty) Limited, with Registration Number: 1990 / 003829 / 07 which is a private company duly incorporated and registered in accordance with the company laws of the Republic of South Africa.  The Applicant’s registered address is situated at Bidvest House, 18 Crescent Drive, Melrose Arch, Gauteng Province, 2196.[1]

[2] The Fist Respondent in this matter is Proudly Bidvest (Pty) Limited with Registration Number: 2016 / 283804 / 07 which is a private company duly incorporated and registered in accordance with the company laws of the Republic of South Africa.  The Respondent’s registered address is situated at 94 Regency Drive, Route 21 Corporate Park, Irene, Gauteng Province, 0181.[2]

[3] The Second Respondent in this matter is the Commissioner of the Companies and Intellectual Property Commission appointed in terms of section 189 of the Companies Act, 2008 (Act No. 71 of 2008) (“the Act”).  The Second Respondent is cited in his official capacity as the person who is responsible for the function of the Companies and Intellectual Property Commission (“the Commission”) in terms of the Act.

[4] This is a company name objection application (“the Application for Relief”) in terms of which the Applicant objects to the registration of the company name of the First Respondent, being Proudly Bidvest (Pty) Ltd, in terms of sections 11 and 160(2)(b) of the Act, read together with regulations 13 and 142 of the Companies Regulations, 2011 (“the Regulations”).  In short, the Applicant contends that the First Respondent’s name is contrary to the provisions of sections 11(2)(a), 11(2)(b) and 11(2)(c) of the Act. In this regard, the Applicant contends:

4.1         that the First Respondent’s company name is identical to (the same as) the Applicant’s PROUDLY BIDVEST trade mark.

4.2         that the First Respondent’s company name is confusingly and/or deceptively similar to the Applicant’s registered, distinctive and well-known BIDVEST and PROUDLY BIDVEST trade marks as well as being confusingly similar to the Applicant’s trade marks that incorporate BIDVEST and PROUDLY BIDVEST; and

4.3         that the First Respondent’s company name falsely imply or suggest or is such as would reasonably mislead, a person to believe, incorrectly so, that the First Respondent is associated or part of the business of the Applicant.[3] 

[5] In this Application for Relief, the Applicant is therefore seeking a determination by the Companies Tribunal in respect of the registration of the company name of the First Respondent, being Proudly Bidvest (Pty) Ltd, by the Commission. 

[6] The Applicant filed the Application for Relief (Form CTR 142) on the 25^th day of April 2018.  In terms of its Application for Relief, the Applicant is requesting the Companies Tribunal to grant the following relief against the First and Second Respondents:

6.1         Directing the First Respondent to change its name to one which does not incorporate the trade mark BIDVEST or PROUDLY BIDVEST, or any other trade mark / word that is confusingly and/or deceptively similar thereto;

6.2         In the event that the First Respondent fails to comply with the order set out in paragraph 6.1 above within 3 months from the date of the order, directing the Second Respondent, in terms of section 160(3)(b)(ii) of the Act read with regulation 142 of the Regulations, to change the name of the First Respondent to “K2016 / 283804 / 07 (Pty) Ltd”, as the First Respondent’s interim company name on the Companies Register; and

6.3         granting the Applicant further and/or alternative relief.[4]

FORM AND SUBSTANCE OF THE APPLICATION FOR RELIEF IN TERMS OF THE REGULATIONS

[7] As I have already indicated above, this is an Application for Relief in terms of which the Applicant is objecting to the company name of the First Respondent in terms of sections 11(2)(a), 11(2)(b), 11(2)(c) and 160 of the Act read with applicable Regulations.  It is my view however that before I deal with the merits of the current Application for Relief, it is important that I should first deal with some preliminary issues which relates to the form and substance that the current Application for Relief should comply with in terms of the relevant Regulations.

[8] I should therefore begin such an exercise by first having a look at the provisions of regulation 13(a) which deals with the form of the applications of the nature similar to the current Application for Relief in order to determine if such application is indeed in compliance thereof.  The relevant parts of regulation 13(a) read as follows:

“(a)     A person may apply in Form CTR 142 to the Tribunal in terms of section 160 if the person has received… a Notice of a Potentially Contested Name, in Form CoR 9.6 or a Notice of a Potentially Offensive Name, in Form CoR 9.7, or has an interest in the name of a company as contemplated in section 160(1)….”  [Own emphasis added.]

[9] As already stated, the current Application for Relief is contained in Form CTR 142 (Application for Relief).  As I would outline herein below, the Applicant does indeed have an interest in the name of the First Respondent. I am therefore satisfied that the current Application for Relief does comply with regulation 13(a) of the Regulations as outlined above.

[10] In terms of regulation 142(1) of the Regulations, a person may apply to the Companies Tribunal for an order in respect of any matter contemplated in the Act or the Regulations by completing and filing with the Companies Tribunal’s recording officer:

10.1      an Application in Form CTR 142; and

10.2      a supporting affidavit setting out the facts on which the application is based. 

[11] The current Application for Relief is made in Form CTR 142 and it is supported by a Founding Affidavit deposed to by Lindsay Peter Ralphs who, as it appears from the papers placed before me, is the Chief Executive Officer of the Applicant.  There is clear indication from the papers placed before me that the deponent is indeed duly authorised to launch the current Application for Relief and to depose to the Founding Affidavit on behalf of the Applicant.  The authority is in terms of a Resolution passed by the Board of Directors of the Applicant and a copy thereof is annexed to the Founding Affidavit and marked Annexure “LR1”.[5]

[12] In terms of regulation 142(2) of the Regulations, the Applicant is required to serve a copy of the Application for Relief together with the Founding Affidavit and any attachment thereto on each respondent cited in the Application for Relief, within 5 business days, calculated from the date of filing of the Application for Relief with the Companies Tribunal.

[13] Based on my reading of the papers placed before me, the current Application for Relief was electronically served upon the First Respondent through email communication on the 02^nd day of May 2018.  The service email address belongs to one Shaheer Noormohamed who is the sole director of the First Respondent.  According to the information placed before me, the email address belonging to Shaheer Noormohamed is reflected as “shaheer@nazprop.co.za”.  I also took cognizance of the fact that the Applicant’s attorneys, Edward Nathan Sonnenbergs Incorporated (“ENS”) and Shaheer Noormohamed did exchange several email communications using the aforementioned email address prior to the launching of these proceedings.   There is no indication that the aforementioned email address is no longer working or was not working on the date of service of the Application for Relief in this matter.  I further took cognizance of the fact that on 04 May 2018, Legal Courier Services attempted to serve the Application for Relief on the First Respondent but the First Respondent refused to accept such service.[6]

[14] I am therefore satisfied that the service email address (being shaheer@nazprop.co.za) of the Application for Relief is the same as the email address that was used by the Applicant’s attorneys, ENS, to transmit the letter of demand to the First Respondent on or about the 26^th day of April 2017.  The aforesaid letter is dated 09 March 2017 and was addressed for the attention of Shaheer Noormohamed, who is the sole director of the First Respondent.[7]

[15] It is therefore clear that service of the Application for Relief upon the First Respondent was effected electronically within a period of 5 business days calculated from the date of filing of the Application for Relief with the Companies Tribunal as stipulated in regulation 142(2) of the Regulations.

[16] I however was not able to find any proof of service of the current Application for Relief upon the Second Respondent.  Be that as it may, this shortcoming will only become relevant in the event that the Applicant is seeking any relief against the Second Respondent.  In that event, I will not be able to make any order against the Second Respondent until such time that the Applicant provides me with proof of service of the Application for Relief on the Second Respondent.

[17] Save for the aforementioned shortcoming, I am therefore satisfied that the current Application for Relief is, both in form and substance, in compliance with regulation 142 of the Regulations.  The Application for Relief was therefore properly brought before the Companies Tribunal and was also properly served on the First Respondent.

[18] In terms of regulation 143(1) of the Regulations, any respondent who wishes to oppose the Application for Relief must serve a copy of its answer on the initiating party and file the answer with proof of service thereof with the Companies Tribunal within twenty (20) business days after being served with an application that has been filed with the Companies Tribunal.[8]

[19] It follows therefore that the First Respondent was required to serve a copy of its answer on the Applicant and file its answer together with proof of service on the Applicant with the Companies Tribunal within twenty (20) business days in terms of regulation 143(1) of the Regulations.

[20] Upon proper calculation of the time frames in terms of regulation 143(1) of the Regulations the First Respondent was required and had failed to serve on the Applicant and to file with the Companies Tribunal a copy of its answer to the current Application for Relief together with proof of service on the Applicant on or before the 30^th day of May 2018.  As at the date of filing of the Application for the Default Order by the Applicant, the First Respondent has still not served on the Applicant and filed with the Companies Tribunal a copy of its answer together with proof of service on the Applicant as prescribed by regulation 143(1) of the Regulations.

[21] As a result of the First Respondent’s failure to serve on the Applicant and file with the Companies Tribunal a copy of its answer together with proof of service on the Applicant with the Companies Tribunal, the Applicant is therefore entitled to file the Application for Default Order with the Companies Tribunal in terms of regulation 153(1) of the Regulations. 

[22] Once such Application for Default Order is filed with it, the Companies Tribunal is therefore enjoined to consider such an application in terms of sections 11(2) and 160 of the Act read with the provisions of regulation 153(2) of the Regulations.  It is therefore important that I should make reference to the provisions of regulation 153(1) and (2) of the Regulations which read as follows:

“(1)        If a person served with an initiating document has not filed a response within the prescribed period, the initiating party may apply to have the order, as applied for, issued against that person by the Tribunal.

(2)         On an application in terms of sub-regulation (1), the Tribunal may make an appropriate order–

(a)          after it has heard any required evidence concerning the motion; and

(b)          if it is satisfied that the notice or application was adequately served.”

[23] The Applicant did indeed proceed to file its Application for Default Order (Form CTR 145) in terms of regulation 153 of the Regulations on the 21^st day of June 2018.  The Application for Default Order was filed after the expiry of the 20 business days that the First Respondent is afforded to file its answer in terms of the Regulations.

[24] In terms of the Supporting Affidavit in support of the Application for Default Order deposed to by Delene Mary Bertasso dated the 20^th day of June 2018, the Applicant makes the following allegations which are considered to be relevant for purposes of the current Application:[9]

24.1      On 25 April 2018, the Applicant filed an Application for Relief requesting the Companies Tribunal to grant an order that the First Respondent change its company name on the basis that it is contrary to provisions of section 11(2) of the Act.

24.2      On 02 May 2018, a copy of the Application for Relief was electronically served on the First Respondent through email communication which was sent to the email address belonging to Shaheer Noormohamed.  This email address was obtained by the Applicant’s attorneys, ENS, from previous liaisons with the First Respondent.  The covering email that was sent to the First Respondent containing Form CTR 142 and the Founding Affidavit is attached to the Application for Default Order and marked “DB5”.

24.3      As at the date of filing the Application for Default Order, the First Respondent has not filed an answering affidavit in response to the Applicant’s Application for Relief.  This is so despite the fact that the First Respondent had been made aware of the Application for Relief.

24.4      The 20 business days period that is afforded to the First Respondent within which it should file its answering affidavit, if it so wishes, lapsed on the 30^th day of May 2018.

24.5      On 09 March 2017, ENS addressed a letter of demand to the First Respondent, calling on it to change its company name to one not incorporating or confusingly similar to the Applicant’s BIDVEST and PROUDLY BIDVEST trade marks.  A deadline of 16 March 2017 was stipulated the date for First Respondent to deliver its response.[10]

24.6      The First Respondent did not respond to the letter of demand from the Applicant’s attorneys and, on 23 March 2017, ENS appointed a commercial investigator to assist the Applicant in ascertaining the First Respondent’s business activities, the nature and extent of the use, if any, of the BIDVEST and PROUDLY BIDVEST trade marks, and to obtain additional and valid contact details for the First Respondent.

24.7      On or about 21 April 2017, the investigator contacted the First Respondent telephonically and it advised the investigator to mind her own business and did not divulge any information regarding its business.

24.8      Using the contact details obtained by the investigator, ENS contacted the First Respondent telephonically on 25 April 2017.  The First Respondent advised that it did not receive the letter dated 09 March 2017, and requested ENS to re-send the letter of demand to it so that it could obtain legal advice and provide ENS with a response.  ENS did indeed re-send the letter of demand to the First Respondent via email communication on 26 April 2017.  ENS followed up with the First Respondent with regard to a response on 29 June 2017.

24.9      On 07 August 2017, the First Respondent responded to ENS by advising it that its name has not been used in a manner that will mislead others, and made the Applicant an offer to cede the company name Proudly Bidvest (Pty) Ltd and Bidvest Group (Pty) Ltd to the Applicant at a cost of R100 000.00 per each name.  It was stated that the amounts will be used by Shaheer Noormohamed to cover the costs of changing its names of the two companies.

24.10    ENS responded to the First Respondent on 15 August 2017 advising it that the Applicant is not interested in acquiring the two companies’ name for the amount demanded, and will proceed to lodge formal company name objections proceedings against the First Respondent.  On the same day, the First Respondent replied to ENS stating that the Applicant has refused to resolve this matter amicably, and advising that it will vigorously defend any proceedings instituted against it and, in so doing, the First Respondent will seek a costs order against the Applicant.

24.10    On 29 August 2017, ENS provided the Applicant with a detailed list of the information and evidence required to enable it to draft the Founding Affidavit.

24.11    Several follow-ups were done by ENS to the Applicant regarding the collation of the required information and evidence, which given the high profile of the Applicant’s trade marks BIDVEST and PROUDLY BIDVEST, it took some time to collate.  The process was somewhat hampered by certain internal changes that occurred within the Applicant, particularly pertaining to the resignation of the person at the Applicant from whom ENS usually obtained instructions.

24.11    The Applicant provided ENS with most of the requested information on 19 January 2018.  During the period 19 January 2018 to 10 April 2018 several drafts of the Founding Affidavit were prepared, each draft requiring comment and input from the Applicant, so as to ensure its accuracy and that it contained all pertinent arguments and evidence.  During this period it also became necessary for the Applicant to supply additional information.

24.12    ENS attended to drafting of the Founding Affidavit in consultation with the Applicant and the Founding Affidavit was finalized on 10 April 2018.  The Applicant then attended to signing of the Founding Affidavit before a Commissioner of Oaths on the 17^th day of April 2018.  ENS was thereafter able to file the name objection with the Companies Tribunal on 25 April 2018.

24.13    In terms of regulation 153 of the Regulations, the Applicant is therefore requesting that an order be granted against the First Respondent as prayed for in the Founding Affidavit accompanying Form CTR 142.

THE PROVISIONS OF THE ACT AND THE REGULATIONS RELEVANT TO THE DETERMINATION OF THE CURRENT APPLICATION FOR RELIEF

[25] The Companies Tribunal is a creature of statute (the Act) and therefore its jurisdiction to deal with the current Application for Relief is to be found through conducting a thorough examination of the relevant provisions of the Act, Regulations and the papers placed before me in this matter.  I am required to examine the relevant provisions of the Act and the Regulations in order to determine the scope and extent of the powers assigned to the Companies Tribunal to adjudicate upon and make a determination with regard to the Application for Relief.

[26] In terms of paragraph 4.1 of the Founding Affidavit, the Applicant alleges that it is the proprietor in South Africa of several trade marks incorporating or comprising of the trade mark BIDVEST, including the trade marks PROUDLY BIDVEST, PROUDLY BIDVest & Device and BIDVEST Device.[11]

[27] The Applicant further alleges the following in its Founding Affidavit:

27.1      The Applicant changed its name from Bid Industrial Holdings (Pty) Limited to Bidvest Industrial Holdings (Pty) Limited during 2015.

27.2      The Applicant is a wholly owned subsidiary and the intellectual property holding company of Bidvest Group Limited (“Bidvest”).  Bidvest and where applicable its operating divisions use the BIDVEST and PROUDLY BIDVEST trade marks under licence from the Applicant.

27.3      All use of the BIDVEST and PROUDLY BIDVEST trade marks has, therefore, been made with the consent of, and under the strict control of the Applicant.  The substantial reputation and goodwill which subsists in these trade marks, as a result of the use by Bidvest and its divisions of the trade marks, endures to the benefit of the Applicant.

27.4      Bidvest is well-known international services, trading and distribution company that operates seven divisions, namely, Automotive, Commercial Products, Electrical, Finance Services, Freight, Office and Print and Services.

27.5      Bidvest prominently displays the Applicant’s BIDVEST and PROUDLY BIDVEST trade marks on all its promotional material.  The promotional material dates back to a date prior to the date of the First Respondent’s registration, being 11 July 2016.

27.6      Bidvest has made extensive and considerable use in South Africa of its BIDVEST and PROUDLY BIDVEST trade marks during the past 29 years, to the extent that these trade marks have acquired a substantial and favourable reputation in South Africa.

27.7      In addition, BIDVEST and PROUDLY BIDVEST trade marks are used extensively by the seven divisions of the Bidvest Group.  These trade marks generally accompany the main brand of the particular division and are viewed by members of the public as an endorsement, which speaks to the high quality of goods sold or level of services rendered by the particular division of the Bidvest Group.

27.8      The PROUDLY BIDVEST and BIDVEST trade marks are, therefore synonymous with, and distinctive of, the Applicant and the Bidvest Group in South Africa, and particularly in the relevant industry.

27.9      The BIDVEST and PROUDLY BIDVEST trade marks have become a household brands in South Africa and are an asset of significant commercial value to the Applicant.  In the circumstances, the Applicant and Bidvest Group have acquired substantial rights at common law in the BIDVEST and PROUDLY BIDVEST trade marks, these being in addition to the statutory rights that they have in BIDVEST and PROUDLY BIDVEST trade marks.[12]

[28] Based on my reading of the papers placed before me in this matter, the Applicant is relying on the ownership of the various BIDVEST and PROUDLY BIDVEST trade marks when it launched the current company name objection application against the registration of the First Respondent’s company name by the Commission.  The  current Application for Relief is being made in terms of sections 11(2)(a), 11(2)(b), 11(2)(c) and 160 of the Act read with regulations 13 and 142 of the Regulations.

[29] As part of my analysis of the facts that are relevant to this matter, it is imperative that I should deal with each of the provisions of the Act and Regulations that are referred to by the Applicant.  However, where necessary I will make reference to the provisions of the Act and the Regulations which I consider to be relevant for purposes of my reasons and decision on the Application for Relief in this matter.

[30] My point of departure in this exercise will be to look at the provisions of section 11(2) of the Act which forms the basis of company name objection disputes.  The relevant parts of section 11(2)(a), (b) and (c) of the Act reads as follows:

“(2)(a)           The name of a company must 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 section 12(9), or as a business name in terms of the Business Names Act, 1960 (Act No. 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 a mark in respect of which an application has been filed in the Republic for registration as a trade mark or a well-known trademark as contemplated in section 35 of the Trade Marks Act, 1993 (Act No. 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; or

(iv)       a mark, word or expression the use of which is restricted or protected in terms of the Merchandise Marks Act, 1941 (Act No. 17 of 1941), except 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 names 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 a defensive name or to a business name referred to in paragraph (a)(ii), 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

(iv)        in the case of a name similar to a mark, word or expression referred to in paragraph (a)(iv), the use of that mark, word 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)          is part of, or associated with, any other person or entity….”

[Own emphasis added.]

[31] It is imperative that I should also look at the provisions of section 160(1) of the Act which deals with disputes concerning reservation or registration of company names.  Section 160(1) of the Act grants a right to any party who is interested in the name of the company to bring, amongst others, an application similar to the one brought by the Applicant for determination by the Companies Tribunal.  The relevant parts of section 160(1) of the Act read as follows:

“(1)     A person to whom a notice is delivered in terms of this Act with respect to an application for reservation of a name, registration of a defensive name, application to transfer the reservation of a name or the registration of a defensive name, or the registration of a company’s name, or any other person with an interest in the name of a company, may apply to the Companies Tribunal in the prescribed manner and form for a determination whether the name, or the reservation, registration or use of the name, or the transfer of any such reservation or registration of a name, satisfies the requirements of  this Act.”  [Own emphasis added.]

[32] It is also important that I should, in this exercise, make reference to the provisions of section 160(2) of the Act.  I consider these provisions to be absolutely relevant for purposes of my determination and they read as follows:

“(2)     An application in terms of subsection (1) may be made-

(a)       within three months after the date of a notice contemplated in subsection (1), if the applicant received such a notice; or

(b)     on good cause shown at any time after the date of the reservation or registration of the name that is the subject of the application, in any other case.”  [Own emphasis added.]

[33] It is common cause that the company name of the First Respondent was registered by the Commission on the 11^th day of July 2016 and further that its business activities are not restricted.[13]

[34] As I have already pointed out above, the Application for Relief was only filed with the Companies Tribunal on the 25^th day of April 2018.  The Application for Relief was electronically served on the First Respondent through email communication on the 02^nd day of May 2018.  There is no indication that the First Respondent did not receive service of the Application and I will therefore proceed on the basis that the First Respondent did receive service thereof.

[35] The Applicant did not receive the notice contemplated in section 160(1) of the Act from the Commission.  Therefore section 160(2)(a) of the Act is not applicable to the current Application for Relief.  The Applicant therefore falls in the category of any person with an interest in the name of a company as envisaged in section 160(1) of the Act. In terms of section 160(2)(b) of the Act, the Applicant is permitted to file its application to challenge registration of a name of a company by the Commission at any time.  In order to have the current Application for Relief entertained by the Companies Tribunal, the Applicant is however required to show good cause as to why its Application should be entertained as prescribed by section 160(2)(b) of the Act.

[36] It is important for me to begin the exercise of determining the question as to whether or not the Applicant had succeeded in showing good cause as contemplated in section 160(2)(b) of the Act.  In other words, I must determine whether the Applicant managed to explain the time period it took to file the Application for Relief and its entitlement to the relief(s) it is seeking from the Companies Tribunal.  I am required to do this by unpacking the essential requirements for establishing good cause which the Applicant is required to show in terms of the provision of section 160(2)(b) of the Act.  In order for me to accurately execute such exercise it is imperative that I should analyse the Applicant’s papers and also consider relevant case law.  I should do this in order to determine whether the Applicant had presented the necessary or relevant facts to substantiate good cause for its Application for Relief to be entertained by the Companies Tribunal as required by section 160(2)(b) of the Act.

SHOWING OF GOOD CAUSE BY THE APPLICANT IN TERMS OF SECTION 160(2)(b) OF THE ACT

[37] Our courts have had countless opportunity to determine the important factors which should be considered when dealing with the issue of showing good cause in terms of their rules of processes and procedures.  I therefore find such case law to be relevant for purposes of the exercise that I am required to engage in as part of my determination in this matter.

[38] In Colyn v Tiger Food Industries, Jones AJA had the following to say regarding the essential requirements to show “good cause” in relation to an application for rescission of default judgment, which requirements are, in my view and with necessary changes, also relevant to the Application for Relief that is currently placed before me for my determination:

[11]      …The authorities emphasize that it is unwise to give a precise meaning to the term good cause. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait:

‘When dealing with words such as "good cause" and "sufficient cause" in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns' Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352-3). The Court's discretion must be exercised after a proper consideration of all the relevant circumstances.’

With that as the underlying approach the courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiff's claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd, HDS Construction (Pty) Ltd v Wait supra, Chetty v Law Society, Transvaal.).”[14] [Own emphasis added.]

[39] The principles governing the requirements for granting or refusing of condonation applications by courts or tribunals (including the Companies Tribunal) are well established in our law. In terms of these principles the courts or tribunals have a discretion which is to be exercised judicially after taking into account all the relevant facts which have been brought before them by applicants for such condonation.  These facts will differ from one case to the other and what would be reasonable facts in one case might be unreasonable in another case.

[40] Be that as it may, the factors which are important and which the Companies Tribunal is enjoined to take into consideration in the determination of whether or not condone the lateness to file the company name objection and to entertain an Application for Relief brought before it by an applicant in terms of section 160(2)(b) of the Act are the following:

40.1      the degree of lateness or non-compliance with the prescribed time frame;

40.2      the explanation for the lateness or  the failure to comply with time frames;

40.3      prospects of success or bona fide defense in the main case;

40.4      the importance of the case;

40.5      the respondent’s interest in the finality of the matter or case brought before the court or tribunal;

40.6      the convenience of the court or tribunal; and

40.7      avoidance of unnecessary delay in the administration of justice.[15]

[41] As Molahlehi J stated in Kritzinger v CCMA & Others,[16] the aforementioned factors are not individually decisive but are interrelated and must be weighed against each other. In weighing the aforementioned factors for instance, the court or tribunal may find that a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly it may find that strong prospects of success may compensate the inadequate explanation and the long delay to file an application.

[42] In a name dispute application in terms of section 160(1) of the Act, an applicant will succeed in showing good cause envisaged in section 160(2)(b) of the Act by means of giving an explanation that shows how and why it took the time that it took in the filing of its application with the Companies Tribunal.  In other words, the Applicant is required to be generous with the truth with regard to the time period taken and the cause for the delay thereof in filing its application with the Companies Tribunal.  In other words, the applicant must make full disclosure of all information that is relevant to the time period taken to file its Application for Relief which disclosure must begin from the date that it became aware of the registration of the company name that is being objected to.

[43] I also found other authorities which support the fact that the Companies Tribunal could decline the granting of the application against registration of the name of a company if it appears to it that there was a delay in the filing of the application and further that such delay was wilful or was due to gross negligence on the part of an applicant. In fact the Companies Tribunal could on this ground alone decline to grant an indulgence to an applicant who brought the application objecting to the registration of a company name by the Commission. Prospects of success or bona fide defence on the other hand mean that all what needs to be determined by the Companies Tribunal is the likelihood or chance of success when the main case is adjudicated by the Companies Tribunal.[17]

[44] It is my view therefore that without a reasonable and acceptable explanation for the delay, the prospects of success will be rendered immaterial, and therefore an application for condonation should be refused.  Similarly without prospects of success, no matter how good the explanation for the delay could be, an application for condonation should be refused. It has also been held by the courts and tribunals that the applicant should bring the application for condonation as soon as it becomes aware of the lateness of the filing of its case with the court or tribunal.[18]

[45] In my view and coming back to the Application for Relief that is before me, a proper explanation for the delay entails an explanation by the Applicant for each period of the delay and the disclosure of all the details relevant to the delay. The Applicant is therefore required to make full disclosure with regard to all the facts that are relevant to the delay in filing its Application for Relief.  In other words, the Applicant is required to be generous with the truth about the real cause of the delay thereby taking the Companies Tribunal into its total confidence.

[46] In explaining the causes of the delay in terms of section 160(2)(b) of the Act, the Applicant need to include the date on which it first became aware of the registration of the First Respondent’s company name by the Commission and the stage at which the Applicant became aware of the lateness in the filing of its Application for Relief with the Companies Tribunal.

[47] In Highly Nutrious Food Company (Pty) Ltd v Companies Tribunal and Others,[19] Twala J held that section 160(2)(b) does not refer only to the delay in bringing the application but also to showing good cause as to why the application must be entertained by the Companies Tribunal.  According to him, this section therefore requires the Applicant to furnish a reasonable explanation for the delay in filing its Application for Relief with the Companies Tribunal as well as a reasonable explanation as to why such Application for Relief should be entertained by the Companies Tribunal.  In other words, this section does not only require an explanation as to the delay in bringing the Application for Relief but it also require an explanation with regard to the merits of such an Application for Relief as well.  I am therefore inclined to agree with the interpretation given to section 160(2)(b) of the Act by Twala J as outlined above. 

[48] In my view I am required, in terms of section 160(2)(b) of the Act, to make some form of assessment of the Applicant’s papers placed before me and to also make findings with regard to each of the following factors:

48.1      the degree of lateness or non-compliance with the prescribed time frame by the Applicant;

48.2      the explanation for the lateness or  the failure to comply with the prescribed time frames as alleged by the Applicant;

48.3      prospects of success in the main case as alleged by the Applicant;

48.4      the importance of the case to the Applicant;

48.5      the respondent’s interest in the finality of the matter or case brought before the Companies Tribunal by the Applicant;

48.6      the convenience of the Companies Tribunal in dealing with the application brought by the Applicant; and

48.7      avoidance of unnecessary delay in the administration of justice.

[49] It is therefore imperative that I should examine the papers placed before me in this Application for Relief in order determine as to whether the Applicant did indeed succeed in showing good cause for its Application for Relief to be entertained by the Companies Tribunal as provided for in section 160(2)(b) of the Act.

The degree of lateness or non-compliance with the prescribed time frame by the Applicant:

[50] It has already been established that the First Respondent was registered on the 11^th day of July 2016.  The Applicant filed its current Application for Relief with the Companies Tribunal on the 25^th day of April 2018.

[51] There is, however, no disclosure in the Founding Affidavit regarding the date when the Applicant became aware of the registration of the First Respondent by the Commission.  The Applicant only makes the following allegations which I consider to be relevant for purposes of my determination of the issue under consideration:

51.1      On 09 March 2017, ENS addressed a letter of demand to the First Respondent, calling on it to change its company name to one not incorporating or confusingly similar to the Applicant’s BIDVEST and PROUDLY BIDVEST trade marks.  A deadline of 16 March 2017 was stipulated as the date on which the First Respondent must deliver its response.[20]

51.2      The First Respondent did not respond to the aforesaid letter of demand and, on 23 March 2017, ENS appointed a commercial investigator to assist the Applicant in ascertaining the First Respondent’s business activities, the nature and extent of the use, if any, of the BIDVEST and PROUDLY BIDVEST trade marks, and to obtain additional and valid contact details for the First Respondent.

51.3      On or about 21 April 2017, the investigator contacted the First Respondent telephonically and it advised the investigator to mind her own business and the First Respondent did not divulge any information regarding its business.

51.4      Using the contact details obtained by the investigator, ENS contacted the First Respondent telephonically on 25 April 2017.  The First Respondent advised that it did not receive the letter of demand dated 09 March 2017, and requested ENS to re-send the letter of demand to it so that it could obtain legal advice and provide ENS with a response.  ENS did indeed re-send the letter of demand to the First Respondent via email on 26 April 2017.  ENS did make a follow up with the First Respondent on 29 June 2017 with regard to delivery of a response to the Applicant’s letter of demand.

51.5      On 07 August 2017, the First Respondent responded to ENS by advising that its name has not been used in a manner that will mislead others, and made the Applicant an offer to cede the company name Proudly Bidvest (Pty) Ltd and Bidvest Group (Pty) Ltd to the Applicant at a cost of R100 000.00 for each company name.

51.6      ENS responded to the First Respondent on 15 August 2017 advising it that the Applicant is not interested in acquiring the two company names for the amount demanded, and will proceed to lodge formal company name objections proceedings against the First Respondent.  On the same day, the First Respondent replied to ENS stating that the Applicant has refused to resolve this matter amicably, and advising that it will vigorously defend any proceedings instituted against it and, in so doing, will seek a costs order against the Applicant.

51.7      On 29 August 2017, ENS provided the Applicant with a detailed list of the information and evidence required to enable it to draft the Founding Affidavit in support of its Application for Relief.

51.8      Several follow-ups were done by ENS to the Applicant regarding the collation of the required information and evidence, which given the high profile of the Applicant’s trade marks BIDBEST and PROUDLY BIDVEST, it took some time to collate.  The process was somewhat hampered by certain internal changes that occurred within the Applicant, particularly pertaining to the resignation of the person at the Applicant from whom ENS usually obtained instructions.

51.9      The Applicant provided ENS with most of the requested information on 19 January 2018.  During the period 19 January 2018 to 10 April 2018 several drafts of the Founding Affidavit were prepared, each draft requiring comment and input from the Applicant, so as to ensure its accuracy and that it contained all pertinent arguments and evidence.  During this period it also became necessary for the Applicant to supply additional information.

51.10    ENS attended to drafting of the Founding Affidavit in consultation with the Applicant and the Founding Affidavit was finalized on 10 April 2018.  The Applicant then attended to signing of the Founding Affidavit before a Commissioner of Oaths on the 17^th day of April 2018.  ENS was thereafter able to file the name objection with the Companies Tribunal on 25 April 2018.

[52] Although one is not able to figure out the exact date that the Applicant acquired knowledge of registration of the company name of the First Respondent by the Commission for the Applicant’s papers, it is clear that the Applicant acquired such knowledge before the 09^th day of March 2017.  Such knowledge was acquired after a lapse of a period of plus minus 8 months or so from the date of registration of the company name of the First Respondent by the Commission.

[53] The Applicant only filed the Application for Relief on the 25^th day of April 2018.  According to my calculations, the application was filed after a period of more than one (1) year and on (1) month had lapsed from the date that the Applicant acquired knowledge of the registration of the company name of the First Respondent by the Commission.

[54] I had however considered the detailed explanation for the delay as provided by the Applicant in its papers and I find the delay to be understandable under the circumstances that the Applicant found itself.  I therefore find that the explanation provided by the Applicant for the time period taken by the Applicant to file its Application for Relief in this matter to be reasonable and I therefore find the degree of lateness to be excusable under the circumstances.

The explanation for the lateness or the failure to comply with time frames offered by the Applicant:

[55] I have already concluded that the Applicant acquired knowledge of registration of the First Respondent’s company name by the Commission just before 09 March 2017.  I will therefore assume that immediately after acquiring such knowledge, the Applicant instructed its attorneys, ENS to write a letter of demand to the First Respondent.

[56] On 09 March 2017, ENS did indeed address a letter to the First Respondent advising that the Applicant was entitled to lodge a company name objection in respect of the registration of its company name, and requesting it to provide the exact nature of its business activities.  A deadline of 16 March 2017 was stipulated as the date on which the First Respondent must deliver its response.  A copy of the letter written to the First Respondent by ENS is annexed to the Founding Affidavit, marked “LR11” and it appears at pages 317 to 319 of the Indexed and Paginated Bundle of Documents.

[57] It is alleged by the Applicant in its papers that:

57.1      First Respondent did not respond to the letter from ENS dated 09 March 2017;

57.2      As a result of the First Respondent’s failure to respond to the aforesaid letter of demand, ENS appointed a commercial investigator to assist the Applicant in ascertaining the First Respondent’s business activities, as well as the nature and extent of use, if any, of the BIDVEST or PROUDLY BIDVEST trade marks;

57.3      the investigator performed various searches, such as visiting the registered address of the company, conducting searches on additional databases and social media platforms, and obtained contact details of the First Respondent on or about 21 April 2017 but the First Respondent refused to provide the information requested; and

57.4      on or about 26 April 2017, ENS did make contact with the First Respondent who claimed not to have received a copy of the letter dated 09 March 2017.  A copy of the letter of demand was re-sent to the First Respondent through email communication to the email address belonging to Shaheer Noormohamed, who is the sole director of the First Respondent.

[58] It is clear from the papers placed before me that there were several emails that were exchanged between ENS and the First Respondent during August 2017.  On 29 August 2017, ENS and the Applicant commenced with the exercise of gathering the relevant documents and information for purposes of launching the current Application for Relief with the Companies Tribunal.

[59] The Applicant only filed its Application for Relief on the 25^th day of April 2018.  In terms of section 160(2)(b) of the Act, the Applicant is required to provide an explanation for the periods of delay which occurred between 09 March 2017 and 25 April 2018.

[60] According to my calculations, the current Application for Relief was filed after a period of more than one (1) year and one (1) month had lapsed from the date that the Applicant acquired knowledge of the registration of the company name of the First Respondent by the Commission.  Considering the explanation provided by the Applicant I find the delay to be understandable. I therefore find the explanation provided by the Applicant for the time period taken by the Applicant to file its Application for Relief in this matter to be reasonable and I therefore find the explanation for lateness to be acceptable under the circumstances.

The importance of the case to the Applicant:

[61] Judging from the manner in which the Applicant dealt with its objection to the registration of the company name of the First Respondent since 09 March 2017 up until the date of launching the current Application, it is my view that the Applicant does consider this case to be absolutely important to it.

[62] I therefore find that this factor should count in favour of the Applicant in my determination of the question whether or not the Applicant succeeded in showing good cause for its Application for Relief to be entertained by the Companies Tribunal.

The First Respondent’s interest in the finality of the matter or case brought before the Companies Tribunal by the Applicant:

[63] The First Respondent only responded to the letter of demand dated 09 March 2017 and the email communications from ENS during August 2017.  In its response, the First Respondent indicated that it will not be changing its company name but offered to cede its name to the Applicant upon payment of an amount of R100 000.00.

[64] The First Respondent did not file any answer to the Application for Relief, despite having been electronically served with such Application for Relief on 02 May 2018.

[65] Considering the fact that the First Respondent did not file its answer to the Application for Relief after having been served with same, I therefore find that the First Respondent does not seem to be interested in having finality of the company name objection application brought against it reached speedily.

The convenience of the Companies Tribunal in dealing with the application brought by the Applicant:

[66] Even if I were to find that there were reasons to accept the explanation proffered for the delay by the Applicant in this matter, central to the current Application for Relief is whether or not the Applicant does have any reasonable prospects of success on the merits of its objection to the registration of the company name of the First Respondent by the Commission.

[67] It is commonly accepted that even if a reasonable or acceptable explanation had been offered for the delay by an applicant for relief, no purpose would be served in granting an application for condonation if such an applicant has no prospects of success on the merits of the application against registration of the company name of a respondent by the Commission.

[68] The rationale behind the approach adopted by the courts or tribunals is that to simply go through the motions of having to litigate a claim which has no merit cannot be in the interest of justice or the convenience of the courts or tribunals. Furthermore, to grant condonation under those circumstances would clearly be prejudicial to the respondent party, which will be compelled to defend a case which has no merit.

[69] The Applicant has made the following allegations which are considered to be relevant for purposes of assessment of the issue(s) that have been referred to the Companies Tribunal for consideration:

69.1      The Applicant is the proprietor in South Africa of various trade marks incorporating or comprising of BIDVEST and PROUDLY BIDVEST trade marks.

69.2      The registration of the BIDVEST and PROUDLY BIDVEST trade marks predates the registration of the company name of the First Respondent by the Commission.

69.3      Bidvest is a well-known international services, trading and distribution company which operates through its seven divisions, namely Automotive, Commercial Products, Electrical, Finance Services, Freight, Office and Print and Services.

69.3      The Applicant forms part of Bidvest Group Limited, a listed company on the South African stock exchange.

69.4      The Applicant is making an objection against the registration of the First Respondent’s company name by the Commission.  This objection is being made in terms of sections 11(2)(a), 11(2)(b), 11(2)(c) and 160 of the Act read with regulations 13 and 142 of the Regulations.

69.5      The First Respondent’s company name contains the words PROUDLY BIDVEST which is similar to the registered trade mark of the Applicant.

69.6      The First Respondent’s company name contains the word BIDVEST which is similar to the registered trade mark of the Applicant.

69.7      The dominant, distinctive and memorable feature of the First Respondent’s company name is the word PROUDLY BIDVEST.  PROUDLY BIDVEST is therefore the word that persons who encounter the First Respondent’s company name are likely to remember, bearing in mind the consumer’s tendency to imperfectly recall names and trade marks and to only recall the first element of a trade mark or name.

69.8      Alternatively, the dominant, distinctive and memorable feature of the First Respondent’s company name is the word BIDVEST.  BIDVEST is therefore the word that persons who encounter the First Respondent’s company name are likely to remember, bearing in mind the consumer’s tendency to imperfectly recall names and trade marks and to only recall the first element of a trade mark or name.

69.9      The Applicant’s BIDVEST and PROUDLY BIDVEST trade marks are wholly incorporated in the First Respondent’s company name.  The phrase “(Pty) Limited” is wholly descriptive, and does not assist to distinguish the First Respondent’s company name from the BIDVEST or PROUDLY BIDVEST trade marks, and it therefore does not reduce the likelihood of deception or confusion amongst members of the public who will encounter with the First Respondent.

69.10    The BIDVEST and PROUDLY BIDVEST trade marks registrations cover a variety of goods and services.

69.11    The First Respondent has such a diverse range of business activities to such an extent that it is conceivable that it may enter into the Applicant’s direct field of interest in the future.

69.12    The First Respondent’s company name is confusingly and/or deceptively similar to the Applicant’s registered and distinctive BIDVEST and PROUDLY BIDVEST trade marks.

69.13    The First Respondent’s company name will reasonably mislead a person to believe, incorrectly so, that the First Respondent is part of, or associated with, the Applicant’s business.

69.14    The Applicant therefore contends that the First Respondent’s company name does not comply with sections 11(2)(a), 11(2)(b) and 11(2)(c) of the Act.

[70] I do agree with the Applicant with regard to the following:

70.1      That the First Respondent’s company name is the same as the registered PROUDLY BIDVEST trade mark of the Applicant;

70.2      That the First Respondent’s company name is confusingly similar to the registered BIDVEST and PROUDLY BIDVEST trade marks of the Applicant; and

70.3      That the First Respondent’s company name falsely imply or suggest, or is such as would reasonably mislead a person to believe incorrectly, that the First Respondent is part of, or associated with, the Applicant.

[71] Based on what I have stated above regarding the degree of lateness and the explanation for the lateness, the interests of justice as well as convenience of the Companies Tribunal are in favour of having the current Application for Relief entertained by the Companies Tribunal.  In my view, the determination of the issue of whether or not to entertain the current Application for Relief must be arrived at after I have done an exercise of balancing all the seven factors that are relevant when determining the issue of showing of good cause in terms of section 160(2)(b) of the Act.

Avoidance of unnecessary delay in the administration of justice:

[72] It is trite law that condonation may be granted in instance where the interests of justice permit.  In the determination of the question as to whether condonation should be granted or not by the court or tribunal a lot depend on the facts and circumstances of each case that is being considered.  The factors to be considered when determining whether it is in the interests of administration of justice to grant condonation include, but are not limited to the following:

72.1           the extent of the delay;

72.2           the explanation for the delay;

72.3           the effect of the delay on the administration of justice and the other litigants;

72.4           the importance of the issues to be raised in the case;

72.5           the prospects of success; and

72.6           the nature of the relief sought.[21]

[73] In my determination of the interests of justice and the issue with regard to avoidance of unnecessary delay in the administration of justice, I am therefore required to do so with reference to all the factors listed in paragraph 72 above.  I have already found that the delay in this matter is understandable and therefore excusable.  I therefore find the administration of justice dictates that the current Application for Relief must be entertained by the Companies Tribunal.

Prospects of success in the main case offered by the Applicant:

[74] It is now common cause that the Applicant is the proprietor in South Africa of several registered trade marks including those incorporating or comprising of the words BIDVEST and PROUDLY BIDVEST.  The registration of the aforesaid trade marks predates the registration of the company name of the First Respondent by the Commission.  The company name of the First Respondent was registered by the Commission on the 11^th day of July 2016.

[75] The Applicant makes the following allegations in its papers which I considered to be relevant in dealing with the issue of prospect of success:

75.1      The Applicant changed its name from Bid Industrial Holdings (Pty) Limited to Bidvest Industrial Holdings (Pty) Limited in 2015.

75.2      The Applicant is a wholly owned subsidiary and the intellectual property holding company of Bidvest Group Limited (“Bidvest”).  Bidvest and where applicable its operating divisions use the BIDVEST and PROUDLY BIDVEST trade marks under licence from the Applicant.

75.3      All use of the BIDVEST and PROUDLY BIDVEST trade marks has, therefore, been made with the consent of, and under the strict control of the Applicant.  The substantial reputation and goodwill which subsists in these trade marks, as a result of the use by Bidvest and its divisions of the trade marks, endures to the benefit of the Applicant.

75.4      Bidvest is well-known international services, trading and distribution company which operates seven divisions, namely, Automotive, Commercial Products, Electrical, Finance Services, Freight, Office and Print and Services.

75.5      Bidvest prominently displays the Applicant’s BIDVEST and PROUDLY BIDVEST trade marks on all its promotional material.  The promotional material dates back to a date prior to the date of the First Respondent’s registration, being 11 July 2016.

75.6      Bidvest has made extensive and considerable use in South Africa of its BIDVEST and PROUDLY BIDVEST trade marks during the past 29 years, to the extent that these trade marks have acquired a substantial and favourable reputation in South Africa.

75.7      In addition, the BIDVEST and PROUDLY BIDVEST trade marks are used extensively by the seven divisions of the Bidvest Group.  These trade marks generally accompany the main brand of the particular division and are viewed by members of the public as an endorsement, which speaks to the high quality of goods sold or level of services rendered by the particular division.

75.8      The PROUDLY BIDVEST and BIDVEST trade marks are, therefore synonymous with, and distinctive of, the Applicant and the Bidvest Group in South Africa, and particularly in the relevant industry.

75.9      The BIDVEST and PROUDLY BIDVEST trade marks have become a household brands in South Africa and are an asset of significant commercial value to the Applicant.  In the circumstances, the Applicant and Bidvest Group have acquired substantial rights at common law in the BIDVEST and PROUDLY BIDVEST trade marks, these being in addition to the statutory rights that it has in BIDVEST and PROUDLY BIDVEST trade marks.[22]

[76] It is common cause that the Applicant is making an objection against the registration of the First Respondent’s company name by the Commission.  This objection is being made in terms of sections 11(2)(a), 11(2)(b), 11(2)(c) and 160 of the Act read with regulations 13 and 142 of the Regulations.

[77] The First Respondent’s company name contains the words BIDVEST and PROUDLY BIDVEST which are similar to the registered trade marks of the Applicant.  The dominant, distinctive and memorable feature of the First Respondent’s company name is therefore the word BIDVEST.  BIDVEST is therefore the word that persons who encounter the First Respondent’s company name are likely to remember, bearing in mind the consumer’s tendency to imperfectly recall names and trade marks and to only recall the first element of a trade mark or name.

[78] The Applicant’s BIDVEST and PROUDLY BIDVEST trade marks are wholly incorporated in the First Respondent’s company name.  The phrase “(Pty) Ltd” is wholly descriptive, and does not assist to distinguish the First Respondent’s company name from the BIDVEST and PROUDLY BIDVEST trade marks, and it therefore does not reduce the likelihood of deception or confusion on the part of members of the public who encounter with the First Respondent.

[79] The BIDVEST and PROUDLY BIDVEST trade marks registrations cover a variety of goods.  I took cognizance of the fact that the First Respondent’s business activities are not restricted.  The Frist Respondent is therefore permitted to engage in a diverse range of business activities to such an extent that it is conceivable that it may enter into the Applicant’s direct field of interest in the future.

[80] I therefore do agree with the Applicant that the First Respondent’s company name is the same as the Applicant’s registered PROUDLY BIDVEST trade mark.

[81] I do further agree with the Applicant that the dominant, distinctive and memorable feature of the First Respondent’s company name is confusingly similar to the Applicant’s registered and distinctive BIDVEST trade mark.

[82] I do further agree with the Applicant that the First Respondent’s company name will reasonably mislead a person to believe, incorrectly so, that the First Respondent is part of, or associated with, the Applicant’s business.

[83] I therefore find that the Applicant has prospects of success in pursuing its company name objection against the registration of the company name of the First Respondent by the Commission.

[84] Under the circumstances, the Applicant succeeded in showing good cause for its Application for Relief to be entertained by the Companies Tribunal.

MY FINDINGS

[85] As I have already stated above all the factors which must be taken into account when dealing with condonation applications are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist the Applicant in compensating for weak prospects of success. Similarly strong prospects of success may compensate the inadequate explanation and the long delay.

[86] While I am mindful of repeating myself, when dealing with an application for condonation, good cause is shown by the Applicant giving an explanation that shows how and why the delay occurred in the first place. There is authority that the Companies Tribunal could decline the granting of condonation if it appears that the delay was wilful or was due to gross negligence on the part of the Applicant. In fact the Companies Tribunal could on this ground alone decline to grant an indulgence to the Applicant.  The prospects of success or bona fide defence on the other hand mean that all what needs to be determined is the likelihood or chance of success when the main case is heard by the Companies Tribunal.[23]

[87] It is important to point out that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and application for condonation should be refused.  Similarly without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. It has also been held by the courts that the applicant should bring the application for condonation as soon as it becomes aware of the lateness of its case.[24]

[88] The standard that is required in order to show prospects of success is lower than the one that is applied when the main case is considered by the courts or the Companies Tribunal. The applicant for condonation needs show more than just listing factors related to prospects of success. The applicant needs to persuade the Companies Tribunal that there is a chance of it getting the relief that it is seeking when its case is considered by the Companies Tribunal.  It is not sufficient for the Applicant to boldly claim that it has good prospect of success.  What is required from the Applicant is to set forth briefly and succinctly the essential information that may enable the Companies Tribunal to assess the Applicant's prospects of success in the matter.  A bald submission unsupported by any factual averments is therefore not good enough to discern what the prospects of success are in a matter.

[89] It follows therefore that even if I were to find that there were reasons to accept the explanation offered for the delay by the Applicant in this matter, central to the current Application for Relief is whether the Applicant had any reasonable prospects of success on the merits of its objection to the registration of the company name of the First Respondent by the Commission. It is trite that even if a reasonable or acceptable explanation had been offered for the delay by the Applicant, no purpose would be served in granting the application for condonation if the Applicant has no prospects of success on the merits of the application against registration of the company name of the First Respondent by the Commission.

[90] The rationale behind the above approach as adopted by the courts or tribunals is that to simply go through the motions of having to litigate a claim which has no merit cannot be in the interest of justice or the convenience of the courts or tribunals. Similarly to simply go through the motions of having to litigate a claim while there is no reasonable and justifiable explanation for the delay cannot be in the interest of justice or the convenience of the courts and tribunals.  Furthermore, to grant condonation under those circumstances would clearly be prejudicial to the respondent party, which will be compelled to defend a case which has no merit or when there is no reasonable and justifiable explanation for the delay at all.  The Applicant provided detailed explanation which is reasonable and sufficient to excuse the delay in filing the Application for Relief in this matter.

[91] I therefore find as follows:

91.1      I find that the Applicant succeeded in providing reasonable and justifiable explanation for the delay to file its name objection application against the registration of the company name of the First Respondent by the Commission.

91.2      I further find that the interests of justice will be best served by granting condonation to the Applicant for the late filing of its application against registration of the First Respondent’s company name by the Commission.

91.3      I further find that it is in the interests of the Applicant, the First Respondent and the convenience of the Companies Tribunal that finality of this company name objection dispute is reached expeditiously.

91.4      I further find that the Applicant does have prospect of success with regard to its company name objection application against the registration of the First Respondent’s company name by the Commission.

91.5      I further find that, for the reasons stated above, the Applicant managed to show good cause for its Application for Relief to be entertained by the Companies Tribunal.

[92] After making the findings above, I proceeded to consider the merits of the current Application for Relief and came to the following conclusion:

92.1      The Applicant is the proprietor of various registered trade marks including trade marks which incorporate or comprise of the words BIDVEST and PROUDLY BIDVEST.

92.2      The First Respondent’s company name contains the words BIDVEST and PROUDLY BIDVEST which are similar to the registered trade marks of the Applicant.  The dominant, distinctive and memorable feature of the First Respondent’s company name is therefore the word BIDVEST.  BIDVEST is therefore the word that persons who encounter the First Respondent’s company name are likely to remember, bearing in mind the consumer’s tendency to imperfectly recall names and trade marks and to only recall the first element of a trade mark or name.

92.3      The Applicant’s BIDVEST and PROUDLY BIDVEST trade marks are wholly incorporated in the First Respondent’s company name.  The phrase “(Pty) Ltd” is wholly descriptive, and does not assist to distinguish the First Respondent’s company name from the BIDVEST and PROUDLY BIDVEST trade marks, and thereby reducing the likelihood of deception or confusion.

92.4      The BIDVEST and PROUDLY BIDVEST trade marks registrations cover a variety of goods.  The First Respondent’s business activities are not restricted.  The Frist Respondent is therefore permitted to engage in a diverse range of business activities to such an extent that it is conceivable that it may enter into the Applicant’s direct field of interest in the future.

92.5      The Applicant did not consent to the use of its registered BIDVEST or PROUDLY BIDVEST trade marks by the First Respondent.

[93] In relation to the current Application for Relief I therefore make the following finding:

93.1      That the First Respondent’s company name is the same as the Applicant’s registered PROUDLY BIDVEST trade mark.  The First Respondent’s company name is therefore in contravention of section 11(2)(a)(iii) of the Act.

93.2      That the dominant, distinctive and memorable feature of the First Respondent’s company name is similar to the Applicant’s registered and distinctive BIDVEST and PROUDLY BIDVEST trade marks.  The First Respondent has not been granted permission by the Applicant to use the aforesaid registered trade marks of the Applicant.  The First Respondent’s company name is therefore in contravention of section 11(2)(b) of the Act.

93.3      That the First Respondent’s company name will reasonably mislead a person to believe, incorrectly so, that the First Respondent is part of, or associated with, the Applicant’s business.  The First Respondent’s company name is therefore in contravention of section 11(2)(c)(i) of the Act.

[94] I have noted that the Applicant is requesting amongst other things that I should make the following order:

“In the event that the First Respondent fails to comply with the order set out in paragraph 8.1 above within 3 months from the date of the order, directing the Second Respondent, in terms of section 160(3)(b)(ii) of the Act read with regulation 142 of the Regulations, to change the name of the First Respondent to “K2016 / 283804 / 07 (Pty) Ltd”, as the First Respondent’s interim company name on the Companies Register.”

[95] The relevant provisions of section 160(3)(b)(ii) read as follows:

“(3)       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-

(b)         may make an administrative order directing-

(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.”

[96] It is clear from the provisions of section 160(3)(b)(ii) that I lack the powers to make the order that the Applicant is seeking.  There are not statutory provisions which gives me the powers to direct the Second Respondent to change the name of the First Respondent to “K2016 / 283804 / 07 (Pty) Ltd”, as the First Respondent’s interim company name on the Companies Register.  In the event that the First Respondent fails to comply with my order, then the Applicant will be at liberty to bring an appropriate application for enforcement of my order by the High Court.

THE ORDER

I therefore make the following order:

1)               The Application for Default Order in terms of regulation 153(1) of the Regulations is granted.

2)               The Application for Relief against the registration of the company name of the First Respondent, being Proudly Bidvest (Pty) Ltd by the Second Respondent is granted.

3)               The First Respondent is hereby directed to change its name to one which does not incorporate the Applicant’s registered trade marks BIDVEST or PROUDLY BIDVEST, or any other trade mark / word that is confusingly and/or deceptively similar thereto;

4)               The Registrar of the Companies Tribunal is hereby directed to serve this judgment on the First and Second Respondents within a period of 10 (TEN) days calculated from 17 August 2018; and

5)               There is no order as to costs.

_____________________________

LINDELANI DANIEL SIKHITHA

Member of the Companies Tribunal

17 August 2018

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