incumbent Registrar in the Close Corporations Office in Pretoria. The replying submissions were expressed in
the following terms:
"We refer to the respondent's answering submissions forwarded to us under cover of your letter dated 23 October
2002 and wish to file our replying submission on behalf of the Objector.
1.
Ad para [1.1]
It is submitted that members of the public may well perceive the respondent's name to consist of the following
3 elements:
1.
Cape
2.
Town Lodge
3.
CC
The fact is that the respondent's name wholly incorporates the Objector's wellknown trade mark Town Lodge
which is used in conjunction with a word describing a geographical area, namely Cape. The public are very
likely to perceive the respondent's name as the Cape branch of the Objector's hotel Town Lodge. It is artificial
and inappropriate for the respondent to break the respondent's name up in the manner in which it has.
2.
Ad para [1.2.1]
The respondent cannot justify its use of a close corporation name which is confusingly similar to the Objector's
wellknown trade mark and which infringes the Objector's wellknown trade mark through the use of a
geographical area. Factually, the use of a geographical area in combination with the term Lodge infringes the
rights of the Objector.
3.
Ad paras [1.2.2] and [1.2.3]
The Objector is not concerned about the use of the term Cape Town but about the use by the respondent of the
term Town Lodge. The other entities in the telephone directory and on the Companies and Close Corporations
Office registers incorporating Cape Town are accordingly irrelevant to these proceedings.
4.
Ad para [1.2.4]
The Objector has not sought to monopolise the term Cape Town but rather the trade mark Town Lodge. The
respondent cannot seek to rely on the fact that a city name ends in the word Town and then add a word
(Lodge), the combination of which is the Objector's wellknown trade mark.
Page 53 of [2008] 2 All SA 34 (C)
5.
Ad para [1.2.5]
It is not disputed that Cape Town is a city as opposed to a town. The name of the city, however, ends in Town
and, in this regard, I refer to what is stated in paragraph [4] above.
6.
Ad paras [1.3], [1.3.1] and [1.3.3]
The Objector has never endeavoured to monopolise the term Lodge but rather the trade mark Town Lodge. It
is not disputed that Lodge is a descriptive word in the common domain.
7.
Ad para [1.3.2]
The relevance of this paragraph is not understood by the Objector.
8.
Ad para [1.4]
The Objector is entitled to seek to prevent the infringement and dilution of its rights to its trade mark Town
Lodge as such trade mark qualifies for protection as a wellknown trade mark through the extensive use which
has been made of the trade mark in South Africa. The trade mark Town Lodge is distinctive and distinguishes
the services of the Objector through extensive use.
9.
Ad para [1.5]
This paragraph is of little relevance. A close corporation name is not always reflected to the public with the
letters CC. This is often the case in telephone directories, business listings, on signage and when the name of
the business is relayed verbally. The respondent cannot seek to rely on the element CC to distinguish its close
corporation name The element CC is purely descriptive of the fact that the business is registered as a close
corporation. The public are aware of this fact and this element does not serve to distinguish the respondent's
close corporation name from the Objector's wellknown trade mark.
10.
Ad para [1.6]
The Objector does not understand the relevance of this paragraph. It is common for the names of trade mark
proprietors to be completely different from, or even unrelated to, their trade marks. The Objector seeks to
enforce its rights in its registered trade mark Town Lodge and the name of the Objector is of no consequence.
11.
Ad para [2.2]
It cannot be said that the respondent's close corporation name bears no resemblance to the Objector's trade
mark. The respondent's name wholly incorporates the Objector's trade mark. The only distinguishing element
which features in the respondent's close corporation name is the descriptive word Cape. The word Cape cannot
serve to distinguish the name of the respondent from the Objector's trade mark particularly given the nature of
the Objector's business. The Objector has Town Lodges throughout South Africa and the public is likely to
believe that the respondent is merely the Objector's Town Lodge situated in the Cape.
12.
Ad para [2.3]
It is quite correct that the Objector's objection is based on inter alia a trade mark case. The respondent's close