Cetrecore CC and Another v Timbacore CC and Others (7268/09) [2010] ZAWCHC 522 (1 November 2010)

Cetrecore CC and Another v Timbacore CC and Others (7268/09) [2010] ZAWCHC 522 (1 November 2010)

The court found that the relief sought for changing the names of the close corporations was not competent, as the applications were brought outside the statutory period prescribed by section 20 of the Close Corporation Act. There was no evidence that Timbacore CC had passed off its business as that of Centrecore or Timbercore after January 2007, nor was there evidence of confusion or deception in the use of the Timbacore mark. The applicants failed to prove that Timbercore had acquired a reputation worthy of protection at the relevant time. Conversely, Timbacore CC established that it had built up a substantial reputation in its trade mark and domain name, and that the registration and...

Citation
[2010] ZAWCHC 522
Parties
Applicant: Centrecore CC; Applicant: Timbercore CC; Respondent: Timbacore CC; Respondent: Nathaniel Roberts; Respondent: Uniform SA Ltd; Respondent: Registrar of Close Corporations
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 November 2010
Case Number
7268/09
Procedural Posture
Civil Application / Final Judgment
Outcome
Main application dismissed with costs; counter-application granted as per paragraphs 1, 2, 3, and 7 of the notice of counter-application.
Judges
Yekiso
Legal Topics
Passing Off, Unlawful Competition, Close Corporation Name Change, Trade Mark Reputation, Domain Name Dispute
Delict Commercial and Corporate Passing Off Unlawful Competition Close Corporation Name Change Trade Mark Reputation Domain Name Dispute

Case Brief

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Parties

Centrecore CC

Applicant

Timbercore CC

Applicant

Timbacore CC

Respondent

Nathaniel Roberts

Respondent

Uniform SA Ltd

Respondent

Registrar of Close Corporations

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants or respondents have established passing-off in respect of their respective trade marks and domain names.
  2. 2 Whether an order to change the names of the close corporations is competent under the Close Corporation Act.
  3. 3 Whether the registration and use of the domain name www.timbercore.co.za constitutes deception and passing-off.

Ratio Decidendi

The court found that the relief sought for changing the names of the close corporations was not competent, as the applications were brought outside the statutory period prescribed by section 20 of the Close Corporation Act. There was no evidence that Timbacore CC had passed off its business as that of Centrecore or Timbercore after January 2007, nor was there evidence of confusion or deception in the use of the Timbacore mark. The applicants failed to prove that Timbercore had acquired a reputation worthy of protection at the relevant time. Conversely, Timbacore CC established that it had built up a substantial reputation in its trade mark and domain name, and that the registration and...

Court Disposition

Main application dismissed with costs; counter-application granted as per paragraphs 1, 2, 3, and 7 of the notice of counter-application.

Orders

  • No order is made for relief contemplated in paragraphs 4, 5, and 6 of the notice of motion and counter-application.
  • The application of Centrecore CC and Timbercore CC is dismissed with costs.