corporation name is calculated to cause damage to the business of the Objector that infringes its well
established trade mark rights, dilutes its extensive rights and damages its reputation and goodwill. It is trite
that close corporation name objections can be founded on trade mark considerations and legislation.
13.
Ad para [3.1]
The Objector does not contend that the name objected to is incorporated in the trade marks of the Objector.
The Objector contends that
Page 54 of [2008] 2 All SA 34 (C)
the trade mark of the Objector is incorporated in the name of the respondent. The contention is factual and not
spurious and is likely to cause confusion given the notoriety of the Objector's trade mark Town Lodge in
relation to hotel/accommodation services.
14.
Ad para [3.2]
We refer to what is stated in para [1] above. It is trite that trade marks need not be identical in order for them
to be found to be likely to cause confusion or deception. The trade marks Cape Town Lodge and Town Lodge
are confusingly similar in that the only distinguishing feature is the word Cape which is descriptive of a
geographical area and cannot serve to prevent the likelihood of confusion.
15.
Ad para [3.3]
The Objector is not alleging that the two words Town and Cape Town are conceptually similar. The Objector
alleges that the trade marks Town Lodge and Cape Town Lodge are confusingly similar.
16.
Ad para [3.4]
The fact of registration of a close corporation name does not necessarily mean that the close corporation is
trading. The Objector is not aware of any use being made of the close corporation name Down Town Lodge CC.
Should the Objector have become aware of the close corporation name timeoulsy, it would have considered
objecting to the name Should the close corporation be trading, the Objector will consider instituting trade mark
infringement and/or passingoff proceedings against them. There is, however, a distinct difference between the
names Cape Town Lodge CC and Down Town Lodge CC. The word Down is not descriptive of a geographical
area and is accordingly not as likely to cause confusion as the respondent's name. We refer to what is stated in
paragraph [11] above.
17.
Ad para [3.5]
The Objector is not seeking to monopolise the word Town but is seeking to monopolise the trade mark Town
Lodge. It is trite that the combination of two nondistinctive words is capable of being distinctive. This is
particularly so in the present case in which the Objector has made extensive use in South Africa of the name
and trade mark Town Lodge.
18.
Ad paras [4.1][4.6]
Once again, the Objector does not seek to monopolise either of the words Town or Lodge which are both
descriptive and correctly disclaimed. The Objector has not brought this fact to the attention of the Honourable
Registrar as it is of no relevance to these proceedings. It is the combination trade mark Town Lodge which the
Objector has monopolised through its trade mark registrations and which it seeks to protect.
19.
Ad paras [4.7][4.10]
The Objector and the proprietor of those trade mark registrations, Town House Hotel (Pty) Limited, have
entered into an agreement with regard to their respective use and registration of their respective trade marks
Town Lodge and The Town House (Die Dorphuis). The terms and conditions of the agreement are confidential
but are not, in any event, relevant to these proceedings. The rights of Town House Hotel (Pty) Limited do not
detract in any manner from the rights of the Objector to the trade mark Town Lodge.
20.
Ad para [5.7]
We refer to what is stated in paras [15] and [18] above.
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21.
Ad para [5.8]
The respondent's name, it is submitted, also tells the public that it is a branch of the Objector's Town Lodge
which is situated in the Cape.
22.
Ad para [5.9]
All of the Objector's trade marks, namely City Lodge, Road Lodge, Town Lodge and Courtyard are distinctive of
the Objector through the extensive use which has been made of these trade marks throughout South Africa. It
is submitted that the Tree Device is used by the Objector not in an endeavour to render its otherwise non
distinctive trade marks distinctive, but to identify each of these businesses with a common proprietor.
23.
Ad paragraph [5.10]
It is submitted that the gelup used by the respondent is not relevant. Members of the public may frequently
hear of a business such as the business of the respondent by word of mouth or see its name printed in a
directory. The logo and type script employed by the respondent will accordingly not always be available to the
public.
24.
Ad para [5.11]
A significant portion of the Objector's business is also derived from the overseas tourist market and it is