Tritof Enterprise (SA) Proprietary Limited v Registrar of Trade Marks and Others (119/2016) [2018] ZAGPPHC 261 (10 April 2018)
- Citation
- [2018] ZAGPPHC 261
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- T M Makgoka
- Case number
- 119/2016
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- T M Makgoka
- Case number
- 119/2016
On this page
Professional case brief
Research organized from the available case record
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 CironeRegistrar of Trade Marks
RespondentOmega Pharma Innovation & Development NV
Respondent Counsel: BJ VaughanOmegalabs (Pty) Ltd
Respondent Counsel: BJ VaughanMcNeil Healthcare (UK) Ltd
RespondentOmega Pharma NV
Respondent Counsel: BJ Vaughan03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rectification and Expungement Application.
04
Questions and positions
Legal issues
- 01
Whether there are reasonable prospects that another court might reach a different conclusion regarding the rectification and expungement of the second respondent's trade mark.
- 02
Whether there is a compelling reason why the appeal should be heard.
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
Legal principles
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
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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