Tritof Enterprise (SA) Proprietary Limited v Registrar of Trade Marks and Others (119/2016) [2018] ZAGPPHC 261 (10 April 2018)
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...
Source-derived case information.
- Citation
- [2018] ZAGPPHC 261
- Parties
- Applicant: Tritof Enterprises (SA) Proprietary Limited; Respondent: Registrar of Trade Marks; Respondent: Omega Pharma Innovation & Development NV; Respondent: Omegalabs (Pty) Ltd; Respondent: McNeil Healthcare (UK) Ltd; Respondent: Omega Pharma NV
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 119/2016
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rectification and Expungement Application.
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- T M Makgoka
- Legal Topics
- Trade Mark Rectification, Expungement Application, Leave to Appeal, Reasonable Prospects of Success
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tritof Enterprises (SA) Proprietary Limited
Applicant
Registrar of Trade Marks
Respondent
Omega Pharma Innovation & Development NV
Respondent
Omegalabs (Pty) Ltd
Respondent
McNeil Healthcare (UK) Ltd
Respondent
Omega Pharma NV
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rectification and Expungement Application.
Legal Issues
- 1 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.
- 2 Whether there is a compelling reason why the appeal should be heard.
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.
Orders
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
33 paragraphs
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