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 (150 word limit)
Other Intellectual Property Law News
Engineering, management and specialist technical services company Aurecon achieved a first in Tshwane in 2011 when its Lynnwood Bridge Office Park building, situated just off of the N1 highway, achieved a 4 star GreenStar SA – [Office Design v1, Office Design v1]...
Pharmaceutical companies typically invest substantial amounts of money into research and development. Their research, however, is not only aimed at discovering new active pharmaceutical ingredients (APIs). Instead, some companies make small modifications to existing...
A controversial patent process known as ‘ever-greening’ is being carried out by many pharmaceutical brands, and is preventing medications from being made available as generics, affecting many South Africans who are struggling to keep up with the cost of medication....
Updated 38 minutes ago Gauteng Premier David Makhura has promised to outline a comprehensive energy plan in his upcoming State of the Province address, acknowledging that without direct interventions to bolster security of electricity supply the province’s industrialisation vision could be...
Updated 1 hour 12 minutes ago An 8.5 MW solar field due to be officially launched in Rwanda next week, is set to boost the Central African State’s energy generation capacity by 6%, solar project developer Gigawatt Global has revealed. The landmark $23.7-million project is built on land owned by...
Updated 1 hour 44 minutes ago Yet further delays in the production and delivery schedules for the Airbus A400M military airlift and air-to-air refuelling aircraft have led to a major shake-up at Airbus Defence and Space, the Airbus Group company responsible for the aeroplane. The changes were...
Recent Research Reports
Liquid Fuels 2014 - A review of South Africa's Liquid Fuels sector (PDF Report)
Creamer Media’s Liquid Fuels 2014 Report examines these issues, focusing on the business environment, oil and gas exploration, the country’s feedstock supplies, the development of South Africa’s biofuels industry, fuel pricing, competition in the sector, the...
Water 2014: A review of South Africa's water sector (PDF Report)
Creamer Media’s Water 2014 report considers the aforementioned issues, not only in the South African context, but also in the African and global context, and examines the issues of water and sanitation, water quality and the demand for water, among others.
Defence 2014: A review of South Africa's defence industry (PDF Report)
Creamer Media’s Defence 2014 report examines South Africa’s defence industry, with particular focus on the key participants in the sector, the innovations that have come out of the sector, local and export demand, South Africa’s controversial multibillion-rand...
Road and Rail 2014: A review of South Africa's road and rail infrastructure (PDF report)
Creamer Media’s Road and Rail 2014 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 road...
Real Economy Year Book 2014 (PDF Report)
This edition drills down into the performance and outlook for a variety of sectors, including automotive, construction, electricity, transport, steel, water, coal, gold, iron-ore and platinum.
Real Economy Insight: Automotive 2014 (PDF Report)
This four-page brief covers key developments in the automotive industry over the past 12 months, including an overview of South Africa’s automotive market, trade figures, production and the policies influencing the sector.
This Week's Magazine
The international Square Kilometre Array (SKA) radio telescope – which is to be jointly hosted by South Africa and Australia with, later, outstations in other countries – may not yet exist, but international scientific working groups are already deciding what...
A free Web-based solar power plant capacity-planning tool offers project planners and developers, as well as governments, a means to assess the solar energy potential of thin-film solar PV power over an area of land. The tool was developed by thin-film solar...
As yet, no specific methodology, timeline or costs have been finalised to remedy the water ingress, excessive to contractual specifications, into the Gautrain tunnel between emergency shaft two (E2) and Park Station, says Bombela Concession Company technical and...
The “seriously disruptive” electricity outages in South Africa have cost packaging group Astrapak more than R2-million in “irrecoverable downtime costs”, the company said on Monday, adding that the power cuts were negating some of the benefit of energy saving...
Bakkies and more affordable cars dominated South Africa’s new vehicle market in 2014. Unaudited data from the Department of Trade and Industry (DTI) shows that South Africa’s most popular vehicle in 2014 was the Toyota Hilux, selling 37 562 units.