---

IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

 

“The Tribunal”

 

Case Number: CT00838ADJ2021

 

In the matter between:

 

Micro Motor Engineering (Pty) Ltd                                                  Applicant

 

AND

 

Micro Motor Engineering (PTY) LTD                                               Respondent

 

(Registration Number: 2020/142703/07)

 

DECISION

 

 

INTRODUCTION:

 

[1]        The Applicant is Micro Motor Engineering ( Pty) Ltd, a company incorporated and registered in terms of the company laws of the Republic of South Africa, with registration number 1966/ 003236 / 07 , and having its registered business at 149 Rover and Jaguar Roads, Rustavia Ext 3, Germiston, Gauteng, 1 401.

 

[2]        The Respondent is Micro Motor Engineering ( Pty) Ltd, a company incorporated and registered in terms of the company laws of the Republic of South Africa, with its

registered address at 20 McCann Avenue, Dunnottar, Nigel, Gauteng, 1496.

 

[3]        This is an application in terms of which the Applicant opposes the registration of the name ' Micro Motor Engineering ( Pty) Ltd', in terms of sections 11 and 160, read with Regulation 142( a) and ( b) of the Act [1]. The Applicant seeks a determination by the Tribunal in respect of the registration of the name Micro Motor Engineering ( Pty) Ltd, and that an order in terms of section 160( 3) of the Act be made, directing that the Respondent with the duplicate name cease to use the name or identical company name be amended to an alternative name.

 

Submissions by Applicant

 

[4]        The Applicant, represented herein by Marco Edoardo Loreggian in his capacity as Financial Director and Public Officer, duly authorised [2], deposed to a founding affidavit in the Application for Relief, as required by Regulation 142[3]. The applicant submitted that the applicant has been registered as a company with limited liability since 1966, and that the applicant registered a defensive name and trademark in 1992 ( B92/ 3788) [4] due to the fact that a similar attempt was made to hijack the applicant' s name. Mr Loreggian was alerted by his auditors and he became aware on 15 March 2021 that another company also called Micro  Motor  Engineering,  with  registration 2020/ 142703 / 07, had been registered on the CIPC database. On investigation, he was able to obtain the details of the director of the respondent, a Mr Herman Mahungele, as reflected on the disclosure certificate. Mr Mahungele was uncooperative and dismissive. He immediately instructed his attorneys to assist further. The attorneys served a cease and desist demand letter by hand and subsequently by the Sheriff on 27 May 2021, at the registered address and residential address of the director [5]. The respondent did not cease and desist from using the company name, and the registration of the respondent' s company is still active with the CIPC.

 

[5]        The Applicant submitted that the business has been in existence for 58 years and the applicant was registered as a company 55 years ago, and has established an impeccable name and reputation in the industry. The applicant cautions that the fact that a duplicate company has now been registered and could, and more likely will, lead to reputational damage and also opens the applicant up to possible fraudulent transactions and other harmful and damaging practices. The applicant further argues that this is tantamount to identity theft as related to a natural person. The applicant has therefore filed this notice of motion [6] to seek a default order against the respondent, as the respondent has been served with the application for relief by the Sheriff on 25 October 2021.

 

Application of the Law

 

[6]        The applicant has indicated in form CTR 142 that it objects to the respondent' s name as it does not comply with section 11 of the Act, as the respondent' s name is the same (" duplicate") as that of the applicant, and the risks consequent thereto. The applicant has made the assumption that the registration of the exact name of the respondent as that of the applicant could have been an oversight by the CIPC and flaws in the name reservation system, and seeks the assistance of the Companies Tribunal in this regard. The application has been filed in compliance with S. 160 read with S. 11 ( 2)( a)( i) and section 11( 2)( a)( iii ) of the Act. The applicant seeks relief in terms of Section 160( 3)( b)( ii) of the Act. S. 160( 1) provides:

 

“ 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 ( s 11).”

 

[7]        Section 160 ( 2)( b) further provides that an application in terms of subsection 1 above, may be made on good cause shown at any t ime after the date of reservation or registration of the name that i s the subject of the application, in any other case.

 

[8]        Section 160( 3) provides for the powers of the Tribunal where subsections ( 1) and ( 2) have been satisfied. I t provides as follows:

“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-

 

(a)   Must make a determination whether that name, or the reservation, registration or use of the name, or the transfer of the reservation or registration of the name, satisfies the requirements of this Act ( s. 11); and

 

(b)   May make an administrative order directing-

 

(i)   The Commission to- ( cc) cancel the reservation of a name, or the registration of a defensive name.

 

(ii)   a company to choose a new name, and file a notice of 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.”

 

[9]        The Tribunal is therefore tasked with considering this application and satisfying itself that it complies with the requirements of s. 11 ( 2 ) which provides:

 

The name of a company must-

 

(a)   not be the same as

 

(i)   the name of another 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 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.

 

Evaluation

 

[10]     It is important to note that this application for a default administrative order was previously dismissed by myself ( under case number CT 00690ADJ2021 ), on the basis that it was not properly before the Tribunal, as there was no evidence to support the fact that the respondent had been served with this application, in compliance with regulation 142( 2 ). The applicant has filed a new application for relief [7], and served the application upon the respondent , to which the respondent did not respond or file an answer within 20 business days, as required in terms of regulation 143 . The application for relief was served by the Sheriff on 26 October 2021, and according to the return, a copy of the application for relief was served by affixing it on the principal gate of the respondent at 20 McCann Avenue, Dunnottar, Nigel, as no other service was possible [8]. I am satisfied in this instance, that adequate service has been effected, as the respondent was previously served personally with the ' cease and desist' letter at this same address on 27 May 2021. On the merits of the case, the applicant has established that it has grounds to object to the existence of a company name that is the same as its name " Micro Motor Engineering ( Pty) Ltd". The existence and registration of the respondent's name is in contravention of section 11( 2)( a) ( i ) of the Companies Act.

 

FINDINGS

 

[11]     The respondent’s name does not satisfy the requirements of section 11( 2)( a)( i ) of the Companies Act.

 

ORDER:

 

[12]     I t is therefore ordered that:

 

•    the respondent is directed to choose a new name which does not consist of, or incorporate the registered name, defensive name and trade mark ' Micro Motor',

 

•    the respondent file with the CIPC a notice of amendment of its Memorandum of Incorporation , within 60 days from date of this order;

 

•     if the respondent fails to comply with this order as outlined above, the CIPC, in terms of Section 14 ( 2 )( b) of the Act, is ordered to substitute the respondent' s registration number " 2020/ 142703 / 07" followed by ( Pty) Ltd, in the place of Micro Motor Engineering ( Pty) Ltd.

 

 

B. Zulu

 

05 January 2022

---