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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

 

“The Tribunal”

 

Case Number: CT002May2019

 

In the matter between:
BRETT WESLEY DE GROOT	Applicant
(Identity No. 9[…])
AND
Companies and Intellectual Property Commission	Respondent (CIPC)

 

DECISION

 

INTRODUCTION:

 

[1]        The applicant is Brett Wesley De Groot, an adult male residing at […] C[…] Street, Brooklands Estate, Castlehill Drive, Gauteng.

 

[2]        The respondent is the Companies and Intelectual property Commission (CIPC), Pretoria.

 

[3]        This is an application in respect of the reservation of the company name THE BIG PRODUCTIONS.

 

Background

 

[4]        On 27 March 2019 , the applicant applied for the reservation of the company name THE BIG PRODUCTIOS with the respondent, via the online registration tool, with reference number 9171489077.

 

[5]        On 28 March 2019, the applicant received a response via a COR 9.4 letter, bearing the same reference number, advising that the proposed name reservation had been rejected for being confusingly similar to BIG PRODUCT MARKETING AGENTS and BIG 5 PRODUCTIONS GROUP company names.

 

[6]           On 02 May 2019, the applicant duly served and filed an application with the Tribunal on Form CTR 147, for condonation of late filing of the application, and the application for relief was simultaneously filed with the Tribunal on form CTR 142 .

 

[7]        Until the date of filing of this application with the Tribunal, the applicant had not received a reply from the respondent, and consequently pursues a default judgment against the respondent.

 

[8]        The applicant applies that the rejection of the name BIG PRODUCTIONS by the respondent be set aside, and that such name be reserved for the applicant’s use as applied for accordingly.

 

[9]        The applicant argues that although the names raised by the respondent to be confusingly similar to the proposed name by the applicant, only the word “ BIG” is common amongst the names and therefore cannot be held to be confusingly similar to the proposed name reservation. Further, the applicant submits that the fields or markets in which these names would appear are vastly different, as the name he is intending to reserve is for a company that will be in theatre production, whereas the other two existing companies are solely in marketing and advertising.

 

[10]        Applicant therefore submits that there would not be an overlap in clientele and that there would not be any confusion between the names due to distinct fields of operation.

 

Applicable Law

 

[11]        Section 12 (2) provides for the duties of the respondent in respect of company name reservations:

 

The commission must reserve each name as applied for in the name of the applicant, unless-

(a)        The applicant is prohibited, in terms of section 11 (2 )(a) from using the name as applied for, or

(b)        The name as applied for is already reserved in terms of this section.

 

Furthermore, section 12 (3 ) provides thus:

 

If upon reserving name in terms of subsection (2), there are reasonable grounds for considering that the name may be inconsistent with the requirements of-

 

(a)        Section 11 (2 )(b)or (c)

 

(i)      the Commission, by written notice, may require the applicant to serve a copy of the application and name reservation on any particular person, or class of persons, named in the notice, on the grounds that the person or persons may have an interest in the use of the name that has been reserved for the applicant; and

 

(ii)      any person to whom a notice i s required to be given in terms of subparagraph (i) may apply to the Companies Tribunal for a determination and order in terms of section 160.

 

EVALUATION

 

[12]        On the issue of condonation for late filing of this application, the applicant has furnished valid reasons providing that the rejections from the respondent were received while he was out of the country and could only be accessed on his return, as the correspondence could only be readable on a device wich is compatible with specific formatting of the documents. The late filing is condoned accordingly.

 

[13]        The applicant has duly provided proof to this Tribunal, of the electronic service of the application on the respondent, who did not respond, presumably electing to abide by the decision of the Tribunal.

 

[14]        Section 12 (2 ) provides that the respondent must reserve each name applied for by the applicant , unless the company name is the same as the name of another company [ section 11 (2 )(a)], or the name applied for is already reserved. The letter from the respondent rejecting the name reservation does not state that the name applied for is already reserved, but  provides  that  the  name  being  reserved  is “ confusingly similar to name/ s already registered within the meaning of our name register in particular in terms of Sec 11 (2 )(b) of the Companies Act ”. This is not what the Act stipulates for name reservations as already outlined above.

 

[16]        As stipulated in terms of Section 12 (3 ), if upon reserving the name, the respondent has grounds to consider the name inconsistent with Section 11 (2 )(b) or (c), that is , i f the name is confusingly similar to name /s already registered on the respondent’ s name register, or the name falsely implies or suggests or can be such as would reasonably mislead a person to believe incorrectly, that the company is part of, or associated with, any other person or entity, the respondent is required to require the applicant to serve a copy of the application and name reservation on any particular person, in this case, the propriotors of BIG PRODUCT MARKETING AGENTS and BIG PRODUCTIONS GROUP as cited in the notice from the respondent, as they may have an interest in the use of the name that has been reserved by the applicant. The service can then enable pesons with an interest in the use of the name, to apply to the Tribunal for a determination and order in terms of section 160, i f they so desire (Refer Reiner A Schuld v CIPC CT 002Oct 2014 ; see also notes on Section 12 Henochsberg on the Companies Act 71 of 2008 ).

 

ORDER

 

In accordance with Section 12 (2 ) and(3 ), the respondent must:

 

1.        reserve the name THE BIG PRODUCTIONS; and, may

 

2.        require the applicant to serve a copy of the reservation on parties i t deems may have an interest in the use of the name THE BIG PRODUCTIONS.

 

B. Zulu

Member: Companies Tribunal 27 June 2019

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