3rd Level Marketing and Media Group (Pty) Ltd v South African Broadcasting Corporation Ltd (47204/2021) [2022] ZAGPPHC 130; [2022] HIPR 187 (GP) (2 March 2022)

3rd Level Marketing and Media Group (Pty) Ltd v South African Broadcasting Corporation Ltd (47204/2021) [2022] ZAGPPHC 130; [2022] HIPR 187 (GP) (2 March 2022)

The court found that the applicant failed to establish locus standi as an 'interested person' under the Trade Marks Act. The applicant did not provide sufficient evidence in its founding affidavit to demonstrate a genuine competitive interest or reputation in the marks, nor did it specifically challenge each class of registration. The applicant's failure to apply for registration of its own trademarks or to formally challenge the respondent's registrations was fatal to its case. Mere use of the marks without evidence of public association or reputation was insufficient. The application was dismissed with costs, including the costs of counsel.

Citation
[2022] ZAGPPHC 130
Parties
Applicant: 3rd Level Marketing and Media Group (Pty) Ltd; Respondent: South African Broadcasting Corporation Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 March 2022
Case Number
47204/2021
Procedural Posture
Review Application / High Court Judgment
Outcome
Application dismissed with costs, including costs of counsel.
Judges
Selby Baqwa
Legal Topics
Trademark Expungement, Locus Standi, Bona Fide Use, Trade Mark Registration
Intellectual Property Civil Procedure Trademark Expungement Locus Standi Bona Fide Use Trade Mark Registration

Case Brief

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Parties

3rd Level Marketing and Media Group (Pty) Ltd

Applicant

South African Broadcasting Corporation Ltd

Respondent

Procedural Posture

Review Application / High Court Judgment

Legal Issues

  1. 1 Whether the applicant has locus standi as an 'interested person' under the Trade Marks Act to seek removal of the Tshivenda Music Awards and TSHIMA trademarks.
  2. 2 Whether the respondent's registration of the trademarks was bona fide and whether the applicant had a legitimate claim to proprietorship.
  3. 3 Whether the applicant established sufficient reputation or intention to trade to challenge the registered trademarks.

Ratio Decidendi

The court found that the applicant failed to establish locus standi as an 'interested person' under the Trade Marks Act. The applicant did not provide sufficient evidence in its founding affidavit to demonstrate a genuine competitive interest or reputation in the marks, nor did it specifically challenge each class of registration. The applicant's failure to apply for registration of its own trademarks or to formally challenge the respondent's registrations was fatal to its case. Mere use of the marks without evidence of public association or reputation was insufficient. The application was dismissed with costs, including the costs of counsel.

Court Disposition

Application dismissed with costs, including costs of counsel.

Orders

  • The application is dismissed with costs, including the costs of counsel.