Pandora A/S v Truworths Ltd (72261/13) [2015] ZAGPPHC 389; 2015 BIP 268 (GP) (3 June 2015)

Pandora A/S v Truworths Ltd (72261/13) [2015] ZAGPPHC 389; 2015 BIP 268 (GP) (3 June 2015)

The court found that the respondent had provided sufficient evidence of bona fide use of the ESSENCE trade mark in relation to goods in Class 14, specifically jewellery. The style cards and sales records demonstrated that garments sold by the respondent included detachable jewellery items bearing the ESSENCE mark, which could be worn separately. This constituted use of the trade mark in respect of goods covered by the registration. The court accepted that the definition of jewellery includes such items and that the respondent's use was commercially coherent and within the relevant period. Accordingly, the respondent discharged the onus to prove relevant use, and the application for...

Citation
[2015] ZAGPPHC 389
Parties
Applicant: Pandora A/S; Respondent: Truworths Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 June 2015
Case Number
72261/13
Procedural Posture
Review Application / Application to Expunge Trade Mark Registration
Outcome
Application dismissed with costs.
Judges
D S Fourie
Legal Topics
Trade Mark Expungement, Bona Fide Use, Onus of Proof, Class 14 Goods, Trade Mark Act Section 27
Intellectual Property Trade Mark Expungement Bona Fide Use Onus of Proof Class 14 Goods Trade Mark Act Section 27

Case Brief

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Parties

Pandora A/S

Applicant

Truworths Ltd

Respondent

Procedural Posture

Review Application / Application to Expunge Trade Mark Registration

Legal Issues

  1. 1 Whether the respondent has made bona fide use of the ESSENCE trade mark in relation to goods in Class 14.
  2. 2 Whether the trade mark registration should be expunged under section 27(1)(a) or (b) of the Trade Marks Act.

Ratio Decidendi

The court found that the respondent had provided sufficient evidence of bona fide use of the ESSENCE trade mark in relation to goods in Class 14, specifically jewellery. The style cards and sales records demonstrated that garments sold by the respondent included detachable jewellery items bearing the ESSENCE mark, which could be worn separately. This constituted use of the trade mark in respect of goods covered by the registration. The court accepted that the definition of jewellery includes such items and that the respondent's use was commercially coherent and within the relevant period. Accordingly, the respondent discharged the onus to prove relevant use, and the application for...

Court Disposition

Application dismissed with costs.

Orders

  • The application to expunge trade mark registration No 1990/3847 ESSENCE is dismissed with costs.