---

 

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: CT006JUN2018

In the matter between:

KAMAL PARMESAR TIMMAL                                                                              Applicant

and

COMPANIES AND INTELLECTUAL PROPERTY COMMISSION                    Respondent

 

Decision handed down on 28 SEPTEMBER 2018

 

DECISION

INTRODUCTION

[1] This is an application in terms of section 160 (1)[1] of the Companies Act No. 71 of 2008 (‘’the Act’’) and Regulation 142 (1)^[2] of the Companies Regulation, 2011

[2] The Applicant applies for an administrative order that the Respondent be directed to reserve a contested name ‘’MARKETING MATTERZ’’ in terms of section 160 (3) (b) (i) ^[3] of the Act.

BACKGROUND

[3] The Applicant is Kamal Parmesar Timmal, an adult male person with identity number […], with his address at […] O. Drive, Extension 16, North View Office Black, Randburg, North world, Gauteng Province.

[4] The Respondent is the Companies and Intellectual Property Commission, a juristic person established in terms of section 185 of the Act with its address at 77 Meintjies Street, The Dti Campus, Block F, Sunnypark, Pretoria, Gauteng Province.

[5] On 06 February 2018, the Applicant applied to the Respondent for a name reservation in terms of the Companies Regulation 9 (1) of the Companies Regulations, 2011. The following was the proposed name applied for:

‘’MARKETING MATTERZ’’

[6] The Applicant received a Notice Refusing a Name Reservation from the Respondent in terms of Companies Regulations 9 (5) (c) which reads as follows:

‘’We regret to inform you that no name has been approved or your use for the following reason (s):

Unfortunately none of your name/s can be approved due to the fact that it is confusingly similar to names/s already registered within the meaning of our name register in particular in terms of Sec 11 (2) (b) of the Companies Act.

In case of associations kindly file your CoR9.1 manually () together with a letter of consent confirming the same on a company letterhead as well as certified ID copies of directors/s.

Kindly insernamereservationsandregistrations@cipc.co.zat the distinguishing element that will sufficiently be capable of differentiating your name from names already registered within the meaning of our name register in terms of Sec 11 (2).’’

[7] On 14 June 2016 the Applicant applied to the Tribunal for a determination whether the proposed names applied for, satisfies the requirements of the Act in terms of section 160 (1) of the Act.

[8] In support of its application the Applicant submits, the following reason(s) that and state as that:

‘’ I HAVE TRIED MANY TIMES TO HAVE THE NAME MARKETING MATTERZ RESERVED WITH CIPC, HOWEVER HAVE FAILED DUE TO IT BEING REJECTED I WOULD REALLY APPRECIATE IF THE COULD BE RESERVED’’

[9] On 15 June 2018 the Respondent opposed this application and delivered to the Applicant, including the Tribunal its answer in terms of Regulation 143 of the Companies Regulations, 2011.  

[10] The Deponent to the Respondent's papers is Emmanuel Manyelo, the Team Manager Business and Company Names who is in the employ of the Respondent. The Deponent to the Applicant’s affidavit in paragraphs 7.2 states that:

‘’Unless of course the applicant insert the distinguishing element (ABC MARKETING MATTER ect) that will sufficiently be capable of differentiating his name from names within the meaning of our name register. I must further put on records that I have taken in cognizance the fact that the applicant’s application was filed manually however without any reference to any association as per sec 1 (d) of CoR 9.1 attached herewith Marked A for your ease of reference.’’

APPLICABLE LAW

[11] 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.

Regulation 8 of the Companies Regulations, 2011

[12] Regulation 8 reads as follows:

‘’ (1)  In this regulation

(a) "company concerned", when used in relation to

(i) an application to reserve a name

(aa) for an entity that is contemplated, but not yet incorporated, means that contemplated entity; or

(bb) filed by or in respect of an existing company contemplating changing its name, means that company;

(ii) a notice of incorporation, means the company being incorporated; or

(iii) a notice of Amendment of a Memorandum of Incorporation, means the company whose Memorandum of Incorporation has been amended; and

(b) "proposed company name" means a name that appears on

(i) an application for name reservation or defensive registration; or

(ii) either

(aa) a Notice of Incorporation; or

(bb) a Notice of Amendment of a company's Memorandum of Incorporation

irrespective of whether the name has been reserved or defensively registered before the filing of any such notice.

(2) Irrespective of the language of any words used in a proposed company name

(a) every word comprising part of the name must be expressed using the alphabet that is commonly used for writing in any one of the official languages of the Republic; and

(b) every number

(i) signifying a date must be expressed either in words or in Arabic numerals; or

(ii) otherwise forming part of the company's name must be expressed either in words or in Arabic or Roman numerals.

(3) If a proposed company name contains any word or words in any language that is not an official language of the Republic the application or notice filed to reserve, register or use that name must include either

(a) a certified translation of that word, or those words, into an official language of the Republic; or

(b) a declaration that the word falls, or the words fall, within the category of words contemplated in sub-regulation (4), and that the person concerned is entitled to use that mark.

(4) If a proposed company name contains

(a) a registered trade mark; or

(b) a mark in respect of which an application has been filed in the Republic for registration as a trade mark; or

(c) a well known trade mark as contemplated in section 35 of the Trade Marks Act, 1993 (Act No. 194 of 1993)

the application or notice filed to reserve, register or use that name must include satisfactory evidence that the applicant or the company concerned is entitled to use that mark.

(5) If a proposed company name is the same as a name registered as a business name in terms of the Consumer Protection Act, 2008 (Act No. 68 of 2008), as contemplated in section 11 (2)(a)(ii), the application or notice filed to reserve or use that name must include satisfactory evidence that—

(a) the name is so registered for the use of the company concerned or of a person controlling the company; or

(b) the registered user of that name has executed the necessary documents to transfer the registration of that name to the company concerned.

(6) If a proposed company name

(a) is similar to the name of another company, close corporation or co-operative, and is claimed to be justifiable on the grounds that

(i) the company concerned; and

(ii) the other company, close corporation or co-operative, as the case may be,

are both part of the same group of companies; or

(b) falls within any category of names restricted in terms of section 11 (2)(c), and is claimed to be justifiable on the grounds that the company to use that name is in fact part of, associated with, operated by, sponsored by, supported by, endorsed by, owned by, conducted by, or enjoys the patronage of, as the case may be, a person or entity contemplated in that section,

the application or notice to use that name must include satisfactory evidence supporting that claim.

(7) In addition to the symbols set out in section 11 (1) (a) (ii), the name of a company may include the following symbol: '-'.’’

[Note my emphasis and underlining]

 

Regulation 9 of the Companies Regulations, 2011

[13] Regulation 9 reads as follows:

‘’(1) An application to reserve a name in terms of section 12 (1) must be made in Form CoR 9.1, may include as many as four alternative names listed in order of preference, and must be accompanied by

(a) the fee set out in Table CR 1; and

(b) any relevant documentation or evidence required in terms of regulation 8 with respect to each name included in the application.

[Note my underlining and emphasis]

(2) An application to extend the reservation of a name, as contemplated in section 12 (4), must be made in Form CoR 9.2, and must be accompanied by

(a) the fee set out in Table CR 1; and

(b) in the case of a name in respect of which satisfactory evidence of any facts was required in terms of regulation 8 when the name was first reserved, further satisfactory evidence of the relevant circumstances, including any alteration in those circumstances since the reservation was first applied for.

(3) As soon as practicable after receiving an application to reserve a name, or to extend the reservation of a name, the Commission must consider the name, or if more than one name is included in the application for reservation, must consider the names serially in the order in which they appear in the application, and must issue to the applicant

(a) a Notice Requiring Further Particulars in Form CoR 9.3, if the Commission requires more information to satisfy any relevant requirements in terms of section 11 or 12 or regulation 8, before determining whether to accept the application; or

(b) a Notice Confirming a Name Reservation or Registration in Form CoR 9.4, if the Commission has accepted an application to reserve a name, or extend the reservation of a name; or

(c) a Notice Refusing a Name Reservation or Registration in Form CoR 9.5, if

(i) the form of the name, or in the case of an application including alternative names, the form of each such name, fails to satisfy any requirements set out in section 11 or 12, or regulation 8; or

(ii) the use of that name, or in the case of an application including alternative names, the use of each of those names, by the applicant is prohibited in terms of the Act.

(4) If the Commission has accepted the reservation of a name that the Commission considers may be contestable on any ground contemplated in section 12 (3), the Commission, when issuing Form 9.4 in response to that application, must also issue

(a) A Notice of a Potentially Contested Name, in Form CoR 9.6, to the applicant if the name is contestable in terms of section 12 (3)(a), read with section 11 (2)(b) or (c); or

(b) a Notice of a Potentially Offensive Name, in Form CoR 9.7, to the South African Human Rights Commission and to the applicant, if the name is contestable in terms of section 12 (3) (b), read with section 11 (2)(d).’’

Section 11 (2) (a) (b) and (c) of the Act

[14] 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

[15] The main question to be asked, in dealing with what the Tribunal is asked to decide on, is whether the reasons submitted by the Applicant are justified in terms of Regulation 8 of the Companies Regulations, 2011.

[16] Further, the main issue to consider is whether the proposed name satisfy the requirements of section 11 of the Act.

FINDING

[17] In my view, the application to use the name MARKETING MATTERZ lacked satisfactory evidence supporting the Applicant’s reasons in compliance with Regulation 8 of the Companies Regulations, 2011.

[18] Regulation 8 (a) of the Companies Regulations, 2011 provides that if a proposed name is similar to the name of another company, close corporation or co-operative, and is claimed to be justifiable on grounds that the company concerned and the other company, close corporation or co-operative, as the case may be, are both part of the same group of companies the application or notice to use that name must include satisfactory evidence supporting that claim. Therefore I am in agreement with the Respondent’s view as contained in paragraph 7.2 of its Answer.

[19] Further, Regulation 8 (b) of the Companies Regulations, 2011 provides that if a proposed name falls within any category of names restricted in terms of section 11 (2) (c) of the Act, and is claimed to be justifiable on the grounds that the company to use that name is in fact part of, associated with, operated by, sponsored by, supported by, endorsed by, owned by, conducted by or enjoys the patronage of, as the case may be, a person or entity contemplated in section 11 of the Act the application or notice to use that name must include satisfactory evidence supporting that claim.

[20] Furthermore, Regulation 9 (1) (b) of the Companies Regulations, 2011 provides that  an application to reserve a name in terms of section 12 (1) must be accompanied by any relevant documentation or evidence required in terms of regulation 8 with respect to each name included in the application.

[21] After evaluation of this application it is my considered view that the proposed name does satisfy the requirements of section 11 (2) (c) of the Act.

[22] Further, the application in my view does not comply with the provisions of Regulation 8 of the Companies Regulations, 2011.

[23] Therefore the application fails. However, against the aforementioned finding, I am of the recommendation that the Applicant should consider re-applying on the basis that the proposed name applied for did not include satisfactory evidence in support of its application. 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 in terms of section 160 (3) (b) (i) (aa) of the Act:

a) The application is refused.

______________________________

MMOLEDI MALOKANE

(MEMBER OF COMPANIES TRIBUNAL OF SOUTH AFRICA)

Date: 28 SEPTEMBER 2018

[1]  Section 160 (1) reads as follows: ‘’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 the 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.’’

---