3rd Level Marketing and Media Group (Pty) Ltd v South African Broadcasting Corporation Ltd (47204/2021) [2022] ZAGPPHC 406 (15 June 2022)
- Citation
- [2022] ZAGPPHC 406
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Baqwa
- Case number
- 47204/2021
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Baqwa
- Case number
- 47204/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant failed to challenge each trade mark registration it sought to have removed and did not present evidence to establish its interest in the relevant marks, goods, or services. The applicant did not contend that the court erred in requiring locus standi to be established in the founding papers, nor did it challenge the reliance on the applicable legal principles. The grounds of appeal did not disclose any evidence establishing the applicant's interest. Consequently, the court was not persuaded that reasonable prospects of success existed for the appeal.
Court disposition
Application for leave to appeal dismissed with costs, including costs of two counsel.
Orders
- The application for leave to appeal is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.
02
Material facts
Parties
3rd Level Marketing and Media Group (Pty) Ltd
ApplicantSouth African Broadcasting Corporation Ltd
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits
04
Questions and positions
Legal issues
- 01
Whether the applicant has reasonable prospects of success on appeal against the order handed down on 2 March 2022.
- 02
Whether the applicant established locus standi as an interested person under the Trade Marks Act for rectification of the Trade Mark Register.
- 03
Whether the applicant presented sufficient evidence in its founding affidavit to challenge the relevant trade mark registrations.
Party arguments
- Applicant
- The applicant sought leave to appeal the previous order, contending that the court erred in its findings regarding locus standi and the requirements under the Trade Marks Act. The applicant argued that it had an interest in the relevant trade marks and that the court should have found in its favour regarding the rectification of the Trade Mark Register.
- Respondent
- The respondent opposed the application for leave to appeal, arguing that the applicant failed to establish locus standi and did not provide sufficient evidence in its founding affidavit to challenge the trade mark registrations. The respondent maintained that the applicant did not meet the requirements under the Trade Marks Act and that there were no reasonable prospects of success on appeal.
05
Court’s reasoning
Legal principles
- 01
Acting National Director of Prosecutions and Others v Democratic Alliance [2016] ZAGPPHC 489
The test for leave to appeal under section 17(1)(a)(i) requires that the appeal would have reasonable prospects of success, not merely that it might have such prospects.
- 02
Smith v S 2012 (1) SACR 567 (SCA)
Reasonable prospects of success require a dispassionate decision that a court of appeal could reasonably arrive at a conclusion different to that of the trial court; more than a mere possibility of success is required.
- 03
Trade Marks Act; Ritz Hotel Ltd v Charles of the Ritz and Another 1988 (3) SA 290 (A)
An applicant for rectification of the Trade Mark Register must establish that it is an interested person in relation to the relevant mark, goods or services.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to challenge each trade mark registration it sought to have removed and did not present evidence to establish its interest in the relevant marks, goods, or services. The applicant did not contend that the court erred in requiring locus standi to be established in the founding papers, nor did it challenge the reliance on the applicable legal principles. The grounds of appeal did not disclose any evidence establishing the applicant's interest. Consequently, the court was not persuaded that reasonable prospects of success existed for the appeal.
Obiter and limits
- The applicant did not challenge the finding that the Trade Marks Act requires an applicant to establish that it is an interested person for rectification of the Trade Mark Register.
- The applicant did not contend that the court erred in relying on the decision in Ritz Hotel Ltd v Charles of the Ritz and Another regarding the approach to determining whether the applicant is an interested person.
Court disposition
Application for leave to appeal dismissed with costs, including costs of two counsel.
- The application for leave to appeal is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 47204/2021
REPORTABLE: YES/ NO
OF INTEREST TO OTHER JUDGES: YES / NO
REVISED: YES / NO
15/06/22
In the matter between:
3RD
LEVEL MARKETING AND MEDIA
APPLICANT
GROUP (PTY) LTD
AND
SOUTH
AFRICAN BROADCASTING
RESPONDENT
CORPORATION
LTD
In re:
SOUTH
AFRICAN BROADCASTING
APPLICANT
3RD
LEVEL MARKETING AND MEDIA
RESPONDENT
LEAVE TO APPEAL
JUDGMENT
This Judgment was handed down electronically by circulation to the parties’ and or parties representatives by email and by being uploaded to CaseLines. The date and time for the hand down is deemed on 15 June 2022.
BAQWA J:
INTRODUCTION
[1] This is an application for leave to appeal against an order handed down by this court on 2 March 2022.
[2] The test under section 17(1)(a)(i) is whether the appeal “would” have reasonable prospects of success, rather than whether it “might” have reasonable prospects, as was the case prior to the amendment of section 17.
Acting National Director of Prosecutions and Others vs. Democratic Alliance In re: Democratic Alliance vs. Acting National Director of Prosecutions and Others[1]
[3] The Supreme Court of Appeal enunciated what would constitute reasonable prospects in Smith vs. S[2] where it was held that: “what the test of reasonable prospects of process postulates is a dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case cannot be categorised as hopeless. There must, in other words, be a sound rational basis for the conclusion that there are prospects of success on appeal.”
[4] As stated in my judgment (para 30) the applicant failed in its founding affidavit, to challenge each registration which it sought to have removed from the Register of Trade Marks. Put differently the applicant presented no evidence to establish that it was an interested person in relation to the relevant mark, goods or services covered by the registrations for the mark: Tshivenda Music Awards, in class 9 and 41 and the mark: TSHIMA, in class 9, 25, 38, and 41.
[5] Further, the applicant does not contend that this Court erred in holding that the applicant has to establish its locus standi and that it must do so in its founding papers.
[6] The applicant also does not challenge the finding that the Trade Marks Act (the TMA) requires an applicant to establish that it is an interested person for rectification of the Trade Mark Register Under 24, 26 and 27 of the Act.
[7] The applicant also does not contend that this Court erred in relying on the decision in Ritz Hotel Ltd vs. Charles of the Ritz and Another[3] regarding the approach in determining whether the applicant is an interested person.
[8] The grounds of appeal also do not disclose that the applicant presented the evidence which established its interest in relation to the relevant marks, goods and services covered by the relevant registration.
[9] In light of the above and after considering the submission by both counsel for the parties I am not persuaded that reasonable prospects of success exist.
[10] In the result, I make the following order
ORDER
10. 1 The application for leave to appeal is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.
SELBY
BAQWA
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing:
Date of judgment:
Appearance
On behalf of the Applicants
Instructed by
On behalf of the Respondents
Instructed
[1] [2016] ZAG PP HC 489.
[2] 2012 (1) SACR 567 SCA.
[3] 1988 (3) SA 290 (A).
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