Nycomed Austria GMBH v Cipla Medpro (Proprietary) and Another (A758/09) [2011] ZAGPPHC 59; 2011 BIP 152 (GSJ) (18 April 2011)

Nycomed Austria GMBH v Cipla Medpro (Proprietary) and Another (A758/09) [2011] ZAGPPHC 59; 2011 BIP 152 (GSJ) (18 April 2011)

The court found that the appellant's original notice of appeal did not comply with Rule 49(3) as it failed to specify whether the whole or part of the judgment was appealed and did not succinctly state the grounds of appeal. The appellant's subsequent amendments did not cure these defects, and the notices remained irregular. The first respondent's objections were valid, and the application to set aside the irregular proceedings was granted. The court also granted condonation for the first respondent's failure to comply with time periods, recognizing that both parties had contributed to procedural confusion but that fairness required granting the relief sought. The appellant was given...

Citation
[2011] ZAGPPHC 59
Parties
Appellant: Nycomed Austria GMBH; Respondent: Cipla Medpro (Proprietary); Respondent: The Registrar of Trade Marks
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 April 2011
Case Number
A758/09
Procedural Posture
Interlocutory Application / Application Under Rule 30(2)(b) to Set Aside Irregular Proceedings and for Condonation
Outcome
Application granted. Irregular proceedings set aside. Condonation granted. Leave to amend or withdraw notices granted. Costs awarded against appellant.
Judges
Mavundla
Legal Topics
Trade Mark Opposition, Irregular Proceedings, Condonation, Notice of Appeal Requirements, Amendment of Pleadings
Intellectual Property Civil Procedure Trade Mark Opposition Irregular Proceedings Condonation Notice of Appeal Requirements Amendment of Pleadings

Case Brief

Summary, issues, holding and outcome

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Parties

Nycomed Austria GMBH

Appellant

Cipla Medpro (Proprietary)

Respondent

The Registrar of Trade Marks

Respondent

Procedural Posture

Interlocutory Application / Application Under Rule 30(2)(b) to Set Aside Irregular Proceedings and for Condonation

Legal Issues

  1. 1 Whether the original notice of appeal complies with Rule 49(3).
  2. 2 Whether the notice of appeal contains impermissible review grounds and is assailable on that basis.
  3. 3 Whether the amended notice of appeal of November 2009 effectively amended the original notice of appeal.

Ratio Decidendi

The court found that the appellant's original notice of appeal did not comply with Rule 49(3) as it failed to specify whether the whole or part of the judgment was appealed and did not succinctly state the grounds of appeal. The appellant's subsequent amendments did not cure these defects, and the notices remained irregular. The first respondent's objections were valid, and the application to set aside the irregular proceedings was granted. The court also granted condonation for the first respondent's failure to comply with time periods, recognizing that both parties had contributed to procedural confusion but that fairness required granting the relief sought. The appellant was given...

Court Disposition

Application granted. Irregular proceedings set aside. Condonation granted. Leave to amend or withdraw notices granted. Costs awarded against appellant.

Orders

  • Condonation for the first respondent's failure to comply with Rule 30(2)(b) is granted and time periods are extended.
  • The irregular proceeding taken by the appellant on 20 August 2009 embodied in the notice entitled 'Appellant's Notice of Appeal' is set aside in its entirety.