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IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

("THE TRIBUNAL")

CASE NUMBER: CT005JUL2018

In the matter of:

ASSUPOL LIFE LTD                                                                                         APPLICANT

and

PROSPERITY BENEFIT ADMINISTRATORS

(PTY) LIMITED                                                                                  FIRST RESPONDENT

THE COMPANIES AND INTELLECTUAL

PROPERTY COMMISSION                                                          SECOND RESPONDENT

 

Coram: PJ Veldhuizen

Date of Hearing: Not Applicable – Default Order

Order delivered: 18 September 2018

DEFAULT ORDER & REASONS

A. INTRODUCTION

1. THE PARTIES

1.1. The Applicant is ASSUPOL LIFE LTD (“the Applicant”), a public company duly incorporated and existing under the company laws of the Republic of South Africa, having its principal place of business at 308 Brooks Street, Menlo Park, Pretoria, Gauteng.

1.2. The First Respondent is PROSPERITY BENEFIT ADMINISTRATORS (PTY) LTD (“the First Respondent”), a private company duly incorporated in terms of company laws of the Republic of South Africa with a registered office address at 5 Lone Close, Shaldon Place, Lonehill, Gauteng.

1.3. The Second Respondent is the Companies and Intellectual Property Commission (“CIPC”) established in terms of section 185 of the Companies Act 71 of 2008 (“the Act”), with its address at DTI Building, Block F, Meintjies Street, Sunnyside, Pretoria, Gauteng.

B. THE APPLICATION

2. This is an application for a Default Order against the First Respondent. The application is based on Sections 11(2) and 160, read with Regulation 153 of the Act. In short, the Applicant objects to the use of the word PROSPERITY by the First Respondent in its company name.

3. The Applicant is the registered proprietor in South Africa of trade marks incorporating or comprising the words PROSPERITY and PROSPERITY LIFE. The Applicant has comprehensively set out details of the registered trade marks in the affidavit deposed to by its duly authorised representative, JACQUES ERASMUS (“ERASMUS”), the Applicant’s Senior Executive Manager. The aforementioned ERASMUS is the employee of the Applicant responsible for all aspects of the Applicant’s brand protection and brand enforcement.

4. The Applicant’s registered rights predate the Respondent’s company registration by many years and remain valid and in force.

5. The launch of the PROSPERITY brand was established by the Applicant’s predecessor in title, Prosperity Insurance Company Ltd (“PIC”) which later changed its name to Prosperity Life. PIC was founded in 1951 and it is therefore apparent that the Applicant’s trade marks have been used for more than fifty years.

6. During the past five decades, the Applicant has made extensive and considerable use of the PROSPERITY LIFE marks and has developed a significant reputation and goodwill related to the use thereof. As evidence of the aforesaid reputation and goodwill the Applicant has testified as to the use and promotion of the trade mark as well as the market knowledge thereof.

7. The Applicant seeks an Order directing the First Respondent to change its name to a name which does not incorporate or include the Applicant’s PROSPERITY trade mark or that the First Respondent’s name be removed from the companies register.

8. The First Respondent has not filed any opposing papers which it was required to file by 6 August 2018.

C. POINTS FOR DETERMINATION

9. Were the Tribunal’s procedural requirements met?

9.1. Applicant is required to establish good cause in terms of section 160(2)(b) as to why there has been a delay in bringing this application after becoming aware of the First Respondent’s registration.

9.2. The Applicant has testified as to the steps it took upon becoming aware of the First Respondent and the Tribunal accepts that it has not unreasonably delayed pursuing its objection to the First Respondent’s company name.

9.3. Accordingly, the Tribunal accepts that the Applicant has satisfied the requirement contemplated in section 160(2)(b).

10. Service / Jurisdiction.

10.1. The Applicant has provided proof of service of this application on the registered address of the First Respondent in accordance with Act and the First Respondent has failed to answer within the required time period.

10.2. The Tribunal enjoys jurisdiction to order the First Respondent to change its name but not to remove the First Respondent’s name from the companies register.

D. evaluation of evidence

11. The deponent to the founding affidavit, ERASMUS as well as the Applicant’s attorney of record, in the affidavit supporting the request for a Default Order have directed the Tribunal to the provisions of the Act, Regulations and binding case law upon which the Applicant relies for the relief sought.

12. Furthermore, the Applicant has provided sufficient evidence in its papers filed that the First Respondent’s name offends section 11(2) of the Act. This evidence remains unchallenged.

13. The Tribunal therefore accepts the uncontested version put up by the Applicant and grants the relief as set out in E below.

E. Decision

14. The Applicant is granted a Default Order in terms of Section 160(3) of the Companies Act 71 of 2008 and Regulation 153 of the Companies Regulations of 2011 in the following terms:

14.1. It is determined that the First Respondent’s company name does not satisfy the requirements of the Act.[1]

14.2. An administrative order is issued directing the First Respondent to choose a new name, and to file a notice of amendment to its Memorandum of Incorporation within 30 days of this administrative order.[2]

14.3. The First Respondent is ordered to pay the costs of this application.[3]

 

 

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PJ VELDHUIZEN

MEMBER OF THE COMPANIES TRIBUNAL

CAPE TOWN

 

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