negated."
By abandoning the term "person aggrieved" and embracing the term "interested person" in the new Act, the
legislature has simply embodied in the legislation the test applied by the court when investigating whether or not a
person was aggrieved by the registration of a trade mark. The same considerations seem to apply as did before the
new legislation came into force. I shall approach the matter on this basis.
Mr Cullabine on behalf of the first respondent first contends that the applicant's actions in filing and prosecuting
trade mark applications, engaging in socalled licensing activities and instituting these proceedings are all ultra vires
the provisions of the South African Sports Commission Act 109 of 1998 and the National Sport and Recreation Act
110 of 1998. I find nothing in any of these Acts to support this submission. On the contrary, section 12(1)(h) of Act
109 of 1998 expressly states that it is an object of the South African Sports Commission to respect the economy of
sports organisations in the administration of sports. Insofar as the first respondent relies on the fact that the
applicant failed to place before the court its constitution and its powers and authority to engage in the activities
referred to, it was never put in issue on the papers. Nor has the allegation in paragraph 2.1 of the founding
affidavit
View Parallel Citation
to the effect that the applicant has
Page 621 of [2002] 2 All SA 617 (T)
the power to acquire property and incur obligations been denied. This would clearly relate not only to corporeal
property but also to intellectual property. Insofar as the first respondent relies on these facts it seems without
merit. In the contention that the applicant is not an aggrieved person the first respondent relies on the following
facts: the applicant applied for registration of the trade mark Bafana Bafana in all classes for which trade marks
protection can be obtained with the exception of class 25 which covers clothing and footwear. The classes for which
the applicant applied for registration cover a vast array of goods and services ranging from chemicals used in
industry and horticulture to paints, oil and grease, pharmaceuticals, surgical apparatus, cooking apparatus,
firearms, rubber, building materials, services relating to packaging of goods, beauty care, computer programming
and medical, dental, optometric and legal services. It is submitted that it is selfevident that the applicant itself
could never have intended to use these marks in relation to the goods and services covered by these applications,
nor could it have been intended to use the mark for all these goods and services through licensees. Nowhere does
the applicant state that it has ever manufactured any goods whatsoever under the Bafana Bafana trade mark nor
that it intends to do so. It is only averred that the applicant engaged in a licensing program and has in this way
used the Bafana Bafana trade mark. There is no evidence showing how the mark Bafana Bafana has been used by
any third party in relation to licensed goods or services at any time. There is no evidence from any licensee who
claims to have or still use the trade mark.
There is no evidence of licensing agreements attached to the founding affidavit. The only averments relating to
licensing or sponsorships which are dated or in any way related to a time frame are in respect of Kappa Holdings.
The applicant's deponent states that Kappa was the first to utilise the trade mark Bafana Bafana on shoes and
clothing and that this use commenced in 1992. There is no supporting evidence for this allegation which is obviously
hearsay evidence. Reliance is therefore placed on a letter written by Kappa's attorneys. The allegations contained
in this letter are obviously based on instructions received from their clients and not on the attorneys' own
knowledge. These allegations are hence inadmissible evidence and should therefore be disregarded. Accordingly
there is no evidence whatsoever contained in the founding affidavit that Kappa ever used the trade mark Bafana
Bafana on clothing, footwear or headgear. Such evidence as can be found shows that Kappa used its own name on
clothing including gear used by the National Soccer Team.
In an effort to strengthen its case the applicant alleges that it negotiated or entered into sponsorship or
merchandise licensing agreements involving the authorised use by third parties of the applicant's trade mark Bafana
Bafana with a series of sponsors and licensees. These third parties include SAB, Total, Edgars Ltd, South African
Airways, Adidas SA (Pty) Ltd, Sasol, the CocaCola company, the South African Broadcasting Corporation and Nas
Media Ltd. When requested to produce such agreements for inspection the applicant was unable to do so. The
same applies to the goods manufacturers listed in Annexure RH139 with whom the applicant allegedly negotiated
licences. There is
View Parallel Citation
no concrete evidence that any of these negotiations materialised in contracts or that any of these manufacturers
used the trade mark in relation to any of the goods manufactured or services rendered by them. There is no
evidence indicating that any of these alleged negotiations or licensing arrangements had been concluded
Page 622 of [2002] 2 All SA 617 (T)
prior to the first respondent's application. The first respondent also points out that in its evidence the applicant
proceeds on the basis that the applicant and the South African National Football Team are one and the same. This
is not the case. The National Soccer Team is selected for each match to represent the country. The nickname
"Bafana Bafana" is associated with the team elected to play a particular international match and not with the
applicant. The team is not a legal entity. There is no sound ground why intellectual property associated with the
national team is ipso facto owned by the applicant. This is clearly not the case.