Union-Swiss (Pty)Ltd v Bio-Cream Comsmetics CC (56526/2012) [2016] ZAGPPHC 665 (29 July 2016)

Union-Swiss (Pty)Ltd v Bio-Cream Comsmetics CC (56526/2012) [2016] ZAGPPHC 665 (29 July 2016)

The court found that there is a reasonable prospect that another court might reach different findings on the merits and that the appeal has reasonable prospects of success. Therefore, leave to appeal should be granted to the full bench. However, the applicant demonstrated that the respondents are in a precarious financial position, with evidence of low sales, vacated premises, and lack of substantive response to requests for financial disclosure. The respondents failed to provide financial statements or convincing evidence of commercial viability. Given the risk that the applicant may not recover costs if the appeal is unsuccessful, the court held that leave to appeal should be...

Citation
[2016] ZAGPPHC 665
Parties
Applicant: Union-Swiss (Pty)Ltd; Respondent: Bio-Cream Cosmetics CC; Respondent: Bio-Lotion Cosmetics CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 July 2016
Case Number
56526/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Security for Costs
Outcome
Leave to appeal granted to the respondents, conditional upon furnishing security for costs as determined by the Registrar.
Judges
C.P. Rabie
Legal Topics
Leave to Appeal, Security for Costs, Passing Off, Trademark Expungement
Civil Procedure Commercial and Corporate Leave to Appeal Security for Costs Passing Off Trademark Expungement

Case Brief

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Parties

Union-Swiss (Pty)Ltd

Applicant

Bio-Cream Cosmetics CC

Respondent

Bio-Lotion Cosmetics CC

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Security for Costs

Legal Issues

  1. 1 Whether leave to appeal should be granted to the respondents against the previous judgment and orders.
  2. 2 Whether the respondents should be required to furnish security for the costs of the appeal.
  3. 3 Whether the respondents are in a financial position to pay the costs of the appeal if unsuccessful.

Ratio Decidendi

The court found that there is a reasonable prospect that another court might reach different findings on the merits and that the appeal has reasonable prospects of success. Therefore, leave to appeal should be granted to the full bench. However, the applicant demonstrated that the respondents are in a precarious financial position, with evidence of low sales, vacated premises, and lack of substantive response to requests for financial disclosure. The respondents failed to provide financial statements or convincing evidence of commercial viability. Given the risk that the applicant may not recover costs if the appeal is unsuccessful, the court held that leave to appeal should be...

Court Disposition

Leave to appeal granted to the respondents, conditional upon furnishing security for costs as determined by the Registrar.

Orders

  • The respondents are granted leave to appeal to the Full Bench of this division against the whole of the judgment and orders in case numbers 2012/56526, 2013/2521, and 2013/54314.
  • Leave to appeal is conditional upon the respondents furnishing security for the costs of the appeal in an amount to be determined by the Registrar of this Court within 20 days of this order.