Andritz Delkor (Pty) Ltd v Bateman Engineered Technologies and Others (48245/11) [2012] ZAGPPHC 347; 2012 BIP 362 (GNP) (4 December 2012)

Andritz Delkor (Pty) Ltd v Bateman Engineered Technologies and Others (48245/11) [2012] ZAGPPHC 347; 2012 BIP 362 (GNP) (4 December 2012)

The applicant failed to establish the necessary reputation and goodwill in the DELKOR trade mark, either in its own right or as transferred from its predecessors. The evidence presented did not substantiate the existence of a distinctive reputation in the mark, nor did it demonstrate that the fifth respondent's use of DELKOR in conjunction with BATEMAN was likely to cause confusion or misrepresentation among the relevant public. The instances of alleged confusion were either not genuine or related to entities not trading in South Africa. Both parties operate in a specialised industry where customers are sophisticated and unlikely to be misled. The applicant did not provide sufficient...

Citation
[2012] ZAGPPHC 347
Parties
Applicant: Andritz Delkor (Pty) Ltd; Respondent: Bateman Engineered Technologies; Respondent: Delkor Technik B.V.; Respondent: Delkor Sub-Sahara Africa; Respondent: Bateman Projects Ltd; Respondent: Bateman Africa (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 December 2012
Case Number
48245/11
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Van der Byl
Legal Topics
Passing Off, Trade Mark Rights, Goodwill and Reputation, Unlawful Competition, Assignment of Intellectual Property, Misrepresentation
Intellectual Property Commercial and Corporate Delict Passing Off Trade Mark Rights Goodwill and Reputation Unlawful Competition Assignment of Intellectual Property +1 more

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Parties

Andritz Delkor (Pty) Ltd

Applicant

Bateman Engineered Technologies

Respondent

Delkor Technik B.V.

Respondent

Delkor Sub-Sahara Africa

Respondent

Bateman Projects Ltd

Respondent

Bateman Africa (Pty) Ltd

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Has the applicant established a reputation and goodwill in the DELKOR trade mark sufficient to sustain a passing-off claim?
  2. 2 Has the applicant proved that the fifth respondent's use of the DELKOR mark is likely to cause deception or confusion among the relevant public?
  3. 3 Was there a misrepresentation by the fifth respondent that its business or products are those of or associated with the applicant?

Ratio Decidendi

The applicant failed to establish the necessary reputation and goodwill in the DELKOR trade mark, either in its own right or as transferred from its predecessors. The evidence presented did not substantiate the existence of a distinctive reputation in the mark, nor did it demonstrate that the fifth respondent's use of DELKOR in conjunction with BATEMAN was likely to cause confusion or misrepresentation among the relevant public. The instances of alleged confusion were either not genuine or related to entities not trading in South Africa. Both parties operate in a specialised industry where customers are sophisticated and unlikely to be misled. The applicant did not provide sufficient...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, including the costs attendant upon the employment of two counsel.