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South Africa Judgment

North Gauteng High Court, Pretoria

Tritof Enterprise (SA) Proprietary Limited v Registrar of Trade Marks and Others (119/2016) [2018] ZAGPPHC 261 (10 April 2018)

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01

Holding and result

The court found that all grounds raised by the applicant in the application for leave to appeal had already been fully addressed in the previous judgment. Upon careful consideration, the court concluded that there are no reasonable prospects that another court would reach a different conclusion on the facts presented. Furthermore, there is no compelling reason for the appeal to be heard. Accordingly, the application for leave to appeal was dismissed with costs.

Court disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.

02

Material facts

Parties

Tritof Enterprises (SA) Proprietary Limited

Applicant Counsel: P Cirone

Registrar of Trade Marks

Respondent

Omega Pharma Innovation & Development NV

Respondent Counsel: BJ Vaughan

Omegalabs (Pty) Ltd

Respondent Counsel: BJ Vaughan

McNeil Healthcare (UK) Ltd

Respondent

Omega Pharma NV

Respondent Counsel: BJ Vaughan

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rectification and Expungement Application.

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the grounds for rectification and expungement of the second respondent's trade mark were not properly considered and that there are reasonable prospects that another court may reach a different conclusion. The applicant relied on the grounds set out in its application for leave to appeal.
Respondent
The respondents argued that the grounds raised by the applicant had already been exhaustively considered in the judgment and that there are no reasonable prospects of success nor any compelling reason for the appeal to be heard.

05

Court’s reasoning

  1. 01

    Superior Courts Act 10 of 2013, s 17(1)(a)(i) and (ii)

    Leave to appeal may only be granted if there are reasonable prospects of success or some compelling reason for the appeal to be heard.

06

Ratio, limits and disposition

Ratio decidendi

The court found that all grounds raised by the applicant in the application for leave to appeal had already been fully addressed in the previous judgment. Upon careful consideration, the court concluded that there are no reasonable prospects that another court would reach a different conclusion on the facts presented. Furthermore, there is no compelling reason for the appeal to be heard. Accordingly, the application for leave to appeal was dismissed with costs.

Court disposition

Application for leave to appeal dismissed with costs.

  • The application for leave to appeal is dismissed with costs.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2018] ZAGPPHC 261

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

CASE NO: 119/2016

Not Reportable

Not of interest to other Judges

10/4/2018

In the matter between:

TRITOF ENTERPRISES (SA) PROPERTARY LIMITED First Applicant

And

REGISTRAR OF TRADE MARKS First Respondent

OMEGA PHARMA INNOVATION &

DEVELOPMENT NV Second Respondent

OMEGALABS (PTY) LTD Third Respondent

MCNEIL HEALTHCARE (UK) LTD Fourth Respondent

OMEGA

PHARMA NV Fifth Respondent

JUDGMENT - Leave to appeal

MAKGOK AJ

[1] The applicant, the unsuccessful applicant in the main application, seeks leave to appeal against the judgment and order of this court made on 12 October 2017 refusing its rectification and expungment application of the second respondent's trade mark.

[2] The common law test in an application for leave to appeal has always been whether there are reasonable prospects that another court, given the same set of facts, might arrive to a different conclusion. That test has been codified in s 17(1)(a)(i) and (ii) of the Superior Court Act 10 of 2013, in terms of which leave to appeal may only be given where a judge is of the opinion that the appeal would have reasonable prospect of success, or that there is some compelling reason why the appeal should be heard.

[3] I have had a careful and dispassionate regard to the application for leave to appeal. All the grounds set out in the application for leave to appeal have been exhaustively in the judgment sought to be appealed against. There is nothing new in this application. I therefore conclude that there is no reasonable prospect of success in the appeal. There is similarly no compelling reason why the appeal should be heard.

[4] In the result the application is dismissed with costs.

_____

T M Makgoka

Judge of the High Court

APPEARANCES:

For the Applicant: P Cirone

Instructed by: Rademeyer Attorneys., Johannesburg

Klagsbrun Edelstein Bosman De Vries.,

Pretoria

For the Second, Third

And Fifth Respondents: BJ Vaughan

Instructed by: Werksmans Attorneys, Johannesburg

Brazington, Shepperson & McConnell, Pretoria

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Superior Courts Act 10 of 2013

Legislation

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