The Court held that in considering of the expungement application it would have regard to material contained in the
interdict application. The issue in the expungement application boiled down to whether the Lotto trade mark was
sufficiently distinctive to warrant registration as an exclusive use mark. The Court found that it was and dismissed
the application.
Notes
For Intellectual Property (Trade Marks) see:
· LAWSA First Reissue (Vol 29, paras 1306)
Cases referred to in judgment
Bata Limited v Face Fashions CC and another 2001 (1) SA 844 (SCA)
627
Beecham Group plc and another v Triomed (Pty) Ltd [2002] 4 All SA 193
(2003 (3) SA 639) (SCA)
635
Brian Boswell Circus (Pty) Ltd and another v Boswell Wilkie Circus (Pty) Ltd
1985 (4) SA 466 (A)
629
Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All
SA 175 (1998 (3) SA 938) (SCA)
630
Danco Clothing (Pty) Ltd v NuCare Marketing Sales and Promotions (Pty) Ltd
and another 1991 (4) SA 850 (A)
627
Hoechst Pharmaceutical (Pty) Ltd v The Beauty Box (Pty) Ltd (in liquidation)
and Another 1987 (2) SA 600 (A)
629
Kellog Co and another v Bokomo Cooperative Ltd 1997 (2) SA 725 (C)
628
Page 620 of [2007] 1 All SA 618 (T)
Klisser's Farmhouse Bakeries Ltd v Harvest Bakeries Ltd 1989 RPC 27
630
Lorimar Productions and others v Sterling Clothing Manufacturers (Pty) Ltd
1981 (3) SA 1129 (T)
629
Ngqumba en andere v Die Staatspresident en andere 1988 (4) SA 224 (A)
626
PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
626
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son 1993 (2) SA 307 (A)
628
Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T)
626
Sabel BV v Puma AG, Rudolf Dassler Sport [1998] RPC 199
628
South African Football Association v Stanton Woodrush (Pty) Ltd t/a Stan
Smidt & Sons and another 2003 (3) SA 313 (SCA)
634
Judgment
MOTATA J:
There are two applications before this Court namely an application under case number 15574/04 and 21917/04.
National Lotteries Board and Uthingo Management (Pty) Ltd are the applicants in the first case seeking an interdict
against Online Lottery Services (Pty) Ltd as respondent. The second application is by Online Lottery Services (Pty)
Ltd as applicant against National Lotteries Board, Uthingo Management (Pty) Ltd and the Registrar of Trade Marks
as respondents directing the third respondent to rectify the register of trade marks by the expungement thereof of
the registration of a trade mark by the first and second respondents. In this judgment the applications shall be
referred to as the interdict and expungement applications respectively.
In the first application the first applicant, namely the National Lotteries Board was established in terms of the
Lotteries Act 57 of 1997 ("the Lotteries Act"). The functions of the first applicant are inter alia to ensure that the
National Lottery provided for in the Lotteries Act is conducted with due propriety and to ensure that the interest of
every participant in the National Lottery is adequately protected.
The first applicant is a registered proprietor of the trade mark LOTTO in class 36 (in respect of services for and in
connection with financial transactions), trade mark registration number 91/027/02/01, and in class 41 (services for
and in connection with Lotteries), trade mark number 91/020701 (the LOTTO trade mark).
In terms of a notice published in the patent journal of May 1997 certain amendments were effected to the
specification of goods and services. Lottery services had previously fallen into class 36 but were, in terms of the
abovementioned notice reclassified into class 41. The first applicant applied for an amendment to the specification of
services, the effect of which was that the existing trade mark under number 91/02702 was amended to reflect the