Sep 30, 2011
IP perspective on Consumer Protection Act and Companies ActBack
Webber Wentzel|Local Law|Act|Bernadette Versfeld
© Reuse this
Webber Wentzel partner Bernadette Versfeld explains the business names register will operate alongside the trademarks and company names registers.
The aim of the provisions dealing with business names contained in Sections 79 to 81 of the CPA, is to prevent the use of business names, which could lead to confusion or to consumers being mislead into thinking that a business is associated with another, when in fact it is not.
This is often caused by the inclusion of an already existing trademark in the business name. “xxx Trading (Pty) Ltd trading as yyy will no longer be allowed to trade under the name yyy unless yyy is registered as a business name,” explains Versfeld.
This, when applied correctly, will enable trademark owners to identify infringing business names, which may have previously not been detected, she notes.
Versfeld’s concern, however, is whether the business names register will come into existence, as it was supposed to have been maintained in terms of the Business Names Act 27 of 1960, but does not exist, and whether the newly established National Consumer Protection Commission (NCPC) will be able to effectively regulate the new register.
“The Registrar of Trade Marks regulates the trademarks register and the Registrar of Companies and Close Corporations regulated the companies and close corporations register separately.
“We are hoping that the NCPC will, before allowing the registration of a business name, conduct a check of the trademarks and companies registers to ensure that the proposed business name is not an already existing trade mark or company name. It is unclear how this will work from a practical point of view,” she says.
She explains that problems will arise when business names conflict with existing, registered trademarks or company names.
However, Section 81 of the CPA and Section 160 of the Companies Act do make certain provisions to ensure that trade marks and company names remain protected.
Further, the Companies Act comes into play when an application to object to a company name is filed with the Companies Tribunal.
Versfeld notes that the judicial process involved in objecting to a company name has changed significantly.
Under the old Companies Act an objector only had one year from the date of incorporation of the company to file an objection with the Registrar of Companies, or two years from the date of incorporation with the High Court if the company name infringed a registered or well-known trade mark.
Now, the objector can file an application with the Companies Tribunal at any stage. One of the challenging aspects of the new process is that the period allocated for answering the application filed with the Companies Tribunal and replying to that answer has been reduced.
“The short time periods are likely to cause problems, especially in cases where affidavits have to be commissioned abroad and the Act does not make provision for extensions of time,” she adds.
In addition, filing an application with the Tribunal may be more expensive than filing an objection with the Registrar.
“Previously, an objector simply sent a letter to the Registrar arguing why the name was undesirable. The process was fairly efficient from a time and cost perspective. The new procedure is similar to a High Court application procedure and one wonders whether it will have the same time and cost benefits,” says Versfeld.
Meanwhile, some critical clarifications have been made in the Companies Act and the grounds of “undesirability” and “calculated to cause damage” have been replaced with grounds of confusing similarity and false association.
Further, the Companies Act makes provision for the Companies Tribunal to grant an order as to costs providing a benefit, which the objector did not have in the past.
“From an intellectual property perspective, both Acts have positive aspects, but they are not without their challenges,” concludes Versfeld.
Edited by: Shannon de Ryhove© Reuse this Comment Guidelines
Other Intellectual Property Law News
Updated 8 minutes ago The disappearance of a Malaysian jetliner is an "unprecedented aviation mystery", a senior official said on Monday, with a massive air and sea search now in its third day failing to find any confirmed trace of the plane or the 239 people aboard. Vietnam scrambled...
Updated 25 minutes ago South Africa-based independent African oil and gas company SacOil has reported “satisfactory” progress at its existing portfolio of exploration and appraisal assets in Nigeria and Malawi, further confirming that it continued to evaluate several opportunities to...
Updated 1 hour 7 minutes ago West African States Gabon and Morocco have signed two agreements which establish foundations for the development of an ambitious common policy for the enhancement of each country’s respective natural resources. The first agreement was intended to consolidate a...
Recent Research Reports
Automotive 2014: A review of South Africa's automotive sector (PDF Report)
The report provides insight into the business environment, the key participants in the sector, local construction demand, geographic diversification, competition within the sector, corporate activity, skills, safety, environmental considerations and the challenges...
Construction 2014: A review of South Africa's construction sector (PDF Report)
Construction data released during 2013 hints at a halt to the decline in the industry during the last few years, with some commentators averring that the industry could be poised for recovery. However, others have urged caution, noting that the prospects for a...
Electricity 2014: A Review of South Africa's Electricity Sector (PDF Report)
This report provides an overview of the state of electricity generation and transmission in South Africa and examines electricity planning, investment in generation capacity, electricity tariffs, the role of independent power producers and demand-focused initiatives,...
Defence 2013: A review of South Africa's defence industry (PDF Report)
Creamer Media’s 2013 Defence Report examines South Africa’s defence industry, with particular focus on the key players in the sector, the innovations that have come out of the defence sector, local and export demand, South Africa’s controversial...
Road and Rail 2013: A review of South Africa's road and rail infrastructure (PDF Report)
Creamer Media’s Road and Rail 2013 Report examines South Africa’s road and rail transport system, with particular focus on the size and state of the country’s road and rail network, the funding and maintenance of these respective networks, and the push to move...
Liquid Fuels 2013 (PDF Report)
Creamer Media’s 2013 Liquid Fuels report examines South Africa’s liquid fuels market, focusing on the business environment, oil and gas exploration, the country’s feedstock supplies, the development of South Africa’s biofuels industry, fuel pricing,...
This Week's Magazine
Updated 2 hours 57 minutes ago This month’s report includes details of junior miner Papillon Resources’ mining permit for its flagship Fekola gold project, in Mali; the Waterberg Coal Company’s feasibility on the development of an opencast mine, in Limpopo, to produce ten-million tonnes a...
A structured approach, wherein managers personally engage at each level of the project, is necessary to mitigate delays to the workflow on mega construction projects, says State-owned Eskom Kusile power station projects GM Abram Masango. The 4 800 MW Kusile power...
Construction of transmission lines to evacuate power from a regional hydroelectric project in East Africa, which was hanging on the balance following the withdrawal of financing by key partners, is now back on track. After six months of uncertainty, the African...
Three Memorandums of Understanding (MoUs) were signed between South African and Malaysian companies at the Malaysian High Commission in Pretoria on Friday. These MoUs are part of the indirect offsets programme South Africa is providing in return for Malaysia’s...
The South African new vehicle market may well dip to 640 000 units in 2014, says Toyota South Africa Motors (TSAM) sales and marketing senior VP Calvyn Hamman. This is the first prediction that anticipates a drop in the market. To date economists and industry bodies...