Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed. H N refers to
corresponding headnote number.)
South Africa
Beecham Group PLC and another v Triomed (Pty) Ltd [2002] 4 All SA 193
(SCA)
8
Cadbury (Pty) Ltd v Beacon Sweets and Chocolates (Pty) Ltd and another
[2000] 2 All SA 1 (2000 (2) SA 771) (SCA)
6
Cowbell AG v ICS Holdings Ltd [2001] 4 All SA 242 (2001 (3) SA 941) (SCA)
3
Distillers Corporation (SA) Ltd v SA Breweries Ltd and another; Oude
Meester Groep Bpk and another v SA Breweries Ltd 1976 (3) SA 514 (A)
7
ITT Continental Baking Co v Registrar of Trade Marks 1980 (2) SA 127 (T)
6
Joshua Gibson Ltd v Bacon 1927 TPD 207 F
5
Pleasure Foods (Pty) Ltd v TMI Foods CC t/a Mega Burger 2000 (4) SA 181
(T)
6
Provincial Government of the Eastern Cape and others v Contractprops 25
(Pty) Ltd [2001] 4 All SA 273 (2001 (4) SA 142) (SCA)
4
Standard Bank of SA Ltd v United Bank Ltd and another 1991 (4) SA 780
(T)
9
Trust Bank van Afrika Bpk v Eksteen 1964 (3) SA 402 (A)
4
United Kingdom
British Sugar PLC v James Robertson & Sons Ltd [1996] RPC 281 (ChD)
8
Gerber Foods International Ltd v Gerber Products Co [2002] EWCA Civ
1888 (CA)
5
In the matter of an Application by Joseph Crosfield and Sons Ltd 1909 RPC
837
5
Premier Luggage and Bags Ltd v The Premier Co (UK) Ltd [2002] EWCA Civ
387 F
9
The Premier Motor Company (Birmingham) Ltd v Premier Driving School
(Birmingham) Ltd [1962] RPC 222
9
Page 3 of [2003] 2 All SA 1 (SCA)
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Judgment
HARMS JA:
[1] This appeal concerns applications by the appellant, First National Bank of Southern Africa Ltd ("FNB"), for the
registration of the trade marks "Premier" and "Premier Package" in relation to cheques and banking and credit
card services. The respondent ("Barclays"), a British bank, opposed the applications. Eloff J, who had been
appointed in terms of section 6(3) of the Trade Marks Act 194 of 1993 to perform the function of the Registrar
to decide opposition proceedings, refused the
View Parallel Citation
applications for registration. An appeal to the Full Court1 was dismissed and the present appeal is an appeal
of right.2
[2] The applications for registration predate the commencement of the 1993 Act and have to be disposed of
under the provisions of the repealed Trade Marks Act 62 of 1963.3 All further references in this judgment to
"the Act" will thus be references to the 1963 Act.
[3] We have been informed that, whilst the appeal was pending, FNB applied to and obtained from the Registrar
amendments to the scope of the goods and services to its applications. What those amounted to, we were
not told. It is difficult to see on what basis the Registrar could have amended the applications whilst they
were subject of an appeal. Rights of parties are usually frozen upon litis contestatio. Since it was not argued it
is not necessary to decide whether the procedure was valid; nevertheless, its propriety has to be questioned.