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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA

 

 

CASE NO: CT00486ADJ2020

 

In the matter between:

 

SAFIKA HOLDINGS (PTY) LTD                                                   Applicant

(Registration Number 996/001693/07.) and

 

SAFIKA CONSTRUCTION CLOSE COORPORATION               First Respondent

(Registration Number. 2005/091652/23)

 

CIPC                                                                                             Second Respondent

 

Date of Decision: 30th December 2020

 

 

DECISION

 

 

INTRODUCTION

 

1.            The Applicant is SAFIKA HOLDINGS (PTY) LTD. It is a duly incorporated South African company, registered under number 996/001693/07. It has its principal place of business at SAFIKA House, 89 Central Street, Houghton 2198, Gauteng.

 

2.            The First Respondent is SAFIKA CONSTRUCTION CLOSE COORPORATION a close corporation registered under number 2005/091652/23. It has its principal place of business at 984 NU 17 Mdantsane 5219.

 

3.            The Second Respondent is the Company and Intellectual Property Commission.

 

4.            The Applicant applies to the Companies Tribunal in terms of Section 11(2) of the Companies Act 71 of 2008 (“the Companies Act”), a name of a company must not be the same as the name of another company, domesticated company, registered external company, close corporation or co- operative and must not be confusingly similar.

 

APPLICANT’S SUBMISSIONS

 

5.            On 20th October 2020 the Applicant filed its company name objection with the Companies Tribunal and on 21st October 2020 the Applicant had the Sherriff serve the application on the respondent and provides proof thereof. The application was also emailed to the Respondent. Despite being informed of the application the first respondent did not oppose it in time.

 

6.            The Applicants business includes, amongst others, construction, information technology software and hardware and banking. It has a number of registered trademarks, mining, agriculture, and transport with the name SAFIKA.

 

7.            The First Respondents name SAFIKA is exactly the same as the Applicant and the use of ‘construction’ in the First Respondents name does not differentiate it from the Applicant as the applicant has a wide range of business interest.

 

APPLICABLE LAW

 

[1]       Section 11 of the Companies Act provides the criteria for names of companies.

Subsection (2) is most relevant and states as follows:

“(2)      the name of a company must –

(a)     not be the same as, or confusingly similar to –

(i)      the name of another company, registered external company, close corporation or co-operative unless the company forms part of a group of companies using similar names;

(ii)      ... Not relevant

(iii)     a registered trademark 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 trademark or a well-known trademark as contemplated in section 35 of the trademarks act; or

(iv)     ... Not relevant

(b)     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;

...”

EVALUATION AND FINDINGS

 

[2]          Section 11 (2) of the Companies Act requires me to determine whether the name of the first Respondent is confusingly similar to that of the Applicants trademark. SAFIKA CONSTRUCTION CLOSE COORPORATION sounds confusingly similar to SAFIKA, for which the Applicant has a number of trade marks. The names look the same and sound the same. The word ‘construction’ in the first Respondents name does not differentiate it from the Applicant as the Applicant partakes in a wide range of business. When members of the public see the Respondents name they will think of the Applicant. It may give members of the public the impression that it is owned by the Applicant with the potential to cause reputational damage.

 

[3]         The purpose of section 11 of the Companies Act is to protect names from being passed off at the expense of the original name holder of the company or trade mark. I thus find in favour of the applicant.

 

[4]         In its papers that Applicant shows that it had given the respondent ample opportunity to change its name, which the respondent had failed to do forcing the Applicant to make such an application and undertake unnecessary cost. I thus also find that a cost order is appropriate in favour of the Applicant.

 

ORDER

 

[1]          I find in favour of the applicant

 

[2]          The Respondent is directed to change its name to one which does not incorporate and is not confusingly and or deceptively similar to Applicant's. It should not include the word future.

 

[3]          The Respondent is to file a notice of an amendment of its Memorandum of Incorporation, within 60 days of receipt of this order in order to change its name as per 2 above.

 

[4]          In the event that the Respondent fails to comply with the order as aforementioned, within 3 months, from the date of the order, that Second Respondent be directed, in terms of Section 160(3) (b) (ii) read with section 14(2) of the Act, to change the respondent’s name to is registered number being 2005/091652/23.

 

[5]          The Respondent is hereby exempted from the requirement to pay the prescribed fee for filing the notice of amendment contemplated in this paragraph.

 

[6]          This Determination must be served on the Respondent and the Registrar of Companies and Intellectual Property Commission.

 

[7]          The First Respondent is to pay the applicants costs for this application on an attorney client scale.

 

MOHAMED ALLI CHICKTAY

MEMBER OF THE COMPANIES TRIBUNAL

 

MEMBER OF THE COMPANIES TRIBUNAL

 

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