---

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION CASE NO. 2084/2007

In the matter between:

ISHAN DASARATH APPLICANT

and

HULETT ALUMINIUM (PTY) LIMITED FIRST RESPONDENT

THE REGISTRAR OF COMPANIES SECOND RESPONDENT

________________________________________________________________

JUDGMENT Delivered on 31 March 2008 ________________________________________________________________

SWAIN, J.

[1] This application finds its origin in the actions of the second respondent in two respects:

1. An order granted in terms of Section 45 (2) of the Companies Act (hereafter referred to as the Act) directing a company described as City Glass and Aluminium (Pty) Limited (hereafter referred to as the Company) to change its name and

2. The de-registration of the Company on or about 08 December 2006.

[2] The background to the action by the second respondent is as follows.

[3] The Company was registered and incorporated with limited liability on 25 November 2004. The first respondent objected to the Company’s name and as a consequence the second respondent wrote by letter dated 01 December 2005 to the Company advising it of the objection and its rights to make representations, as to why the name was not undesirable, as contemplated in Section 45 of the Act. The Company did not do so because, according to the applicant, who is a director of the Company, he only became aware of the letter on 01 February 2006.

[4] By that stage the thirty day period prescribed for making representations had elapsed. Thereafter, and between the period February 2006 to October 2006, the attorneys for the applicant attempted without success to establish from the second respondent, what action had been taken.

[5] The applicant’s attorneys were eventually advised by the first respondent’s attorneys, by way of a letter dated 14 February 2007, that the second respondent had granted an order on 23 January 2006 directing the Company to change its name. The letter also advised that

“As your client failed to comply with the Registrar’s order, your client was placed in de-registration. The de-registration process was finalised on 19 December 2006”

[6] As a consequence of this information, the present proceedings were launched on 28 February 2007, in which the applicant seeks a setting aside of the order granted by the second respondent in terms of Section 45 (2) of the Act, as well as the re-registration of the Company.

[7] The first respondent does not oppose the re-registration of the Company, provided of course that it does not retain the name to which it successfully objected. The second respondent has taken no part in the present proceedings.

[8] An obstacle initially placed in the path of the applicant was that the applicant had failed to apply to this Court, within one month of the

date of the decision, i.e. 23 January 2006, in terms of Section 48 of the Act. Mr. Morley, S.C., who appeared for the applicant, together with Mr. Finnigan, relying upon the decision in

Swift Transport Services (Pvt) Ltd. v Pittman

1976 (1) SA 827 (R)

submitted that the date upon which the period of one month commenced running was the date upon which the applicant became aware of the order, i.e. 14 February 2007. Although Mr. Michau, who appeared for the first respondent, in his heads of argument, submitted that the period commenced running from the date when the decision was taken, i.e. 23 January 2006, in argument, he conceded that the decision in Swift’s case was correct.

[9] In my view the concession was correctly made for the following reasons:

1. the relevant section of the Road Motor Transportation Act No. 1 of 1972 (R) under scrutiny Swift’s case, read as follows:

“……may within 14 days of such refusal apply in the prescribed form to the Controller for review thereof by a member of the review authority”

2. Golden, J. held that before the applicant receives notification of the decision, he is unable to apply for its review. Consequently, if the fourteen days were to be calculated from the day upon which the Controller arrives at his decision to refuse an application (while it remains his secret), the clear intention of the Legislature to give the applicant fourteen days to apply for a review thereof would inevitably be frustrated.

Swift’s Case supra at page 828 H.

3. Section 48 of the Act provides as follows:

“Any company or person aggrieved by any decision or order of the Registrar under Section 41, 42, 43, 44 or 45 may, within one month after the date of such decision or order, apply to the Court for relief, and the Court shall have power to consider the merits of any such matter, to receive further evidence and to make any order it deems fit”

4. At first blush the reference in the section to “after the date of such decision” may lead to an inference being drawn, that the intention of the Legislature was that the one month period begins to run from the date of the decision, regardless of whether the applicant has knowledge of it. The calculation of the period is not done on the basis of the ordinary civil method of calculating time

Pivot Point v Registrar of Companies 1980 (4) SA 74 (T)

5. The section however also speaks of “Any company or person aggrieved”. “Aggrieved” is defined in the Shorter Oxford English Dictionary, inter alia as “injuriously affected, having a grievance”. These words therefore define the class of company or person who possess locus standi to apply to Court. They must be injuriously affected by the decision. In addition, such company or person in order to be aggrieved, in the sense of “having a grievance” must possess knowledge of the decision or order, made by the Registrar.

6. In my view, a just and equitable interpretation to be placed upon the section, due regard being had to the phrase “date of such decision or order” and “any company or person aggrieved by any decision or order” is that the date of the decision or order is the date upon which knowledge of the decision or order, is acquired by the company or person concerned.

7. The purpose or intention of the Legislature was to ensure that an aggrieved person or company had one month from the date upon which knowledge was acquired of the adverse decision or order, in which to apply to Court for relief.

[10] Even if I am wrong in this conclusion and the time limit imposed is peremptory, such that it is not

“….possible to seek the purpose and intention or the object of the legislature as I have done”

per Golden, J. in Swift’s case supra at 829 C

and the time limit must be “obeyed or fulfilled exactly” the meaning of the phrase “the date of such decision or order” must in my view, be the date upon which the decision or order, is communicated to the applicant. In this context, finality in the decision making process is only achieved once the decision or order is communicated to the applicant.

Swift’s case supra at 829 D – F

[11] Turning to the merits of the application. The second respondent’s power to order the applicant to change its name is found within Section 45 (2) (A) of the Act. Two enquiries are encompassed by the provisions of this section, namely:

1. Does the existing company have such vested rights in its name, or particular words in its name, that the registration of the new company is undesirable or

2. whether the existing company has shown not only that confusion or deception is likely, but if either ensues it will probably cause damage.

Peregrine Group (Pty) Ltd. v Peregrine Holdings Ltd.

2001 (3) SA 1268 (SCA) at 1275 A - E

[12] Although it has been held that it is inappropriate to attempt to circumscribe the circumstances under which the registration of a company would be undesirable, where the names of companies are substantially similar and where there is a likelihood that members of the public will be confused in their dealings with the competing parties, these are important factors which the Court will take into account, when considering whether or not a name is undesirable.

Peregrine’s case supra at 1274 D – F

[13] In the present case, as in Peregrine’s case, the only aspect of undesirability raised by the first respondent is the likelihood of confusion.

[14] It is therefore clear that on the facts of the present case, the

primary issue to be determined, on either of the two grounds of

enquiry encompassed by Section 245 (A) of the Act is whether confusion or deception is likely.

[15] “Likelihood” refers to a “reasonable probability”. In determining a “likelihood” a party must prove its case on a balance of probability. What has to be proved on such a basis are the underlying or background facts, and not the value judgment itself.

Peregrine’s case supra at 1274 I to 1275 C

[16] What has to be compared in the present case is the registered trade mark of the first respondent, with the word mark of the Company.

[17] It is well established that the assessment that has to be made is the impact which the Company’s mark would make upon the average type of customer, who would be likely to purchase the goods to which the marks are applied. Such customer is of average intelligence with proper eyesight and buying with ordinary caution. The sense, sound and appearance of the marks must be compared. They must be viewed as they would be viewed in the market place, not only side by side but separately. Marks are remembered by general impressions

or by some significant or striking feature. The decision maker must transport him or herself to the market place and consider whether the average customer is likely to be deceived or confused.

Plascon Evans Paints (Pty) Ltd. v Van Riebeeck Paints (Pty)

[1984] ZASCA 51; 1984 (3) SA 623 A at 640 H – 641

[18] Global appreciation of the visual, aural or conceptual similarity of the marks must be based upon the overall impression given by the marks, bearing in mind in particular their distinctive and dominant components.

Cowbell A G v   I C S Holdings Ltd.

2001 (3) SA 941 (SCA) at 948 D

[19] It is clear that the name of the Company “City Glass and Aluminium” and the registered mark of the first respondent “Aluminium City” contain common elements, being the words “City” and “Aluminium”. In the Company’s name these words are used in combination with the word “Glass”. The words “City”, “Aluminium” and “Glass” are obviously all ordinary words in everyday use, as distinct from invented or made up words.

Bata Ltd. v Face Fashions cc and Another

2001 (1) 844 (SCA) at 850 H

[20] Placing myself in the position of the notional purchaser in the market place, I cannot imagine that his attention would be focused to such a degree upon the words “City” and “Aluminium” in the name of the Company, to the exclusion of the word “Glass”, which appears between and separates these two words, that he is likely to be confused or deceived into believing that the business of the Company is the business of the first respondent.

[21] When the sense, sound and appearance of the respective marks are examined I am satisfied that there is no likelihood of confusion. The applicant’s name conjures up an image of a business located in the city, selling glass and aluminium. The first respondent’s registered trade mark however, conjures up an image of a large emporium selling exclusively aluminium goods.

[22] I am not concerned with whether or not the second respondent’s decision or order was correct, but with reaching my own

conclusion on the issue of whether the Company’s name is likely to

result in confusion or deception and is undesirable.

Kredietbank van Suid Afrika Bpk v Registrateur van Maatskappye

1978 (2) SA 644 (W) at 650

[23] As pointed out above, the conclusion that the Company’s name is not likely to deceive or confuse, disposes of both grounds of enquiry encompassed by Section 45 (2) (A) of the Act.

[24] Turning to the issue of the de-registration of the Company by the second respondent. I need say little on this aspect save that I am satisfied on the papers before me, that the second respondent failed to comply with the requirements of Section 73 of the Act, before de-registering the company. What is of decisive significance is that the second respondent alleged by way of its letter dated 25 January 2007 that the Company was de-registered on 08 December 2006. The letters, however, from the second respondent, enquiring whether the Company was still carrying on business, being a necessary precursor to any decision to de-register in terms of Section 73 (1) of the Act, are dated 23 April 2007. The second respondent has not filed any affidavit to explain this striking anomaly.

[25] The order I therefore make is the following:

1. The order made by the second respondent on 22 February 2006, in terms of Section 45 (2) of the Companies Act 1973, is set aside.

2. The de-registration of City Glass and Aluminium (Pty) Ltd. by the second respondent on or about 08 December 2006 is set aside.

3. The registration of City Glass and Aluminium (Pty) Ltd. formerly registered under No. 2004/035428/07 is restored to the Company Register in terms of Section 73 (6) of the Companies Act.

4. City Glass and Aluminium (Pty) Ltd. is ordered to submit forms CM 22 and CM 29 to the second respondent in terms of Sections 170 and 216 of the Companies Act, within thirty days of this order.

5. The first respondent is ordered to pay the applicant’s costs, such costs to include the

employment of two Counsel.

_______________

SWAIN, J.

Appearances ../

Appearances:

Counsel for the Applicant : Mr. G.E. Morley, S.C.

assisted by Adv. D. Finnigan

Represented by : Legator McKenna Incorporated

Counsel for the 1^st Respondent : Adv. R. Michau

Date of hearing : 18 March 2008

Date of Judgment : 31 March 2008

---