Commercial Auto Glass (Pty) Ltd v Baker Street Trust and others; In re Jennings NO and others v Commercial
Auto Glass (Pty) Ltd
 2 All SA 260 (T)
Transvaal Provincial Division
24 JANUARY 2006
JCW van Rooyen AJ
M Snyman and D Cloete
. Editor's Summary . Cases Referred to . Judgment .
 Intellectual property law Trademarks Application for expungement Application not justified on grounds advanced
 Intellectual property law Trademarks Distinctive nature Although word when spoken sounded generic, the
written form, deliberately misspelt, found to be distinctive.
 Words and phrases "interested person" Trade Marks Act 194 of 1993 Sections 24 and 27 Court confirmed that
the applicant was an "interested person" as required by sections 24 and 27 of the Act as it was involved in the industry
in which the trademarks operated.
A number of trade mark registrations existed for the word "Shatterprufe". The applicant sought to expunge those
registrations, alternatively, it sought a declaratory order that its use of the term "shatterproof" did not infringe the
registered trade marks. In a counterapplication, the respondents sought an interdict preventing the infringement
of the said trade marks.
The respondent was the registered proprietor of the "Shatterprufe" trademark.
Held Each party bore the onus of proof in their respective applications. The Court confirmed that the applicant was
an "interested person" as required by sections 24 and 27 of the Act as it was involved in the industry in which the
The applicant based its case on section 24(1) of the Trade Marks Act 194 of 1993 ("the Act") in that it was
contended that the registered marks wrongly remained in the trade marks register, and on section 27(1) in that the
applicant alleged that the marks had not been used by the respondents.
Having regard to the arguments raised by the applicant in its application for expungement, the Court found that
expungement would not be justified on any of the grounds raised by the applicant.
The Court then turned to consider the distinctiveness of the "Shatterprufe" trademark. The Court confirmed the
distinctive nature of the mark. Such distinctiveness lay in the spelling of the word. The Court also sought to allow
the applicant to use the word "shatterproof" in its generic sense, while preventing trade mark infringement by
ordering that the word should not be emphasised, and should be used merely as a descriptor.
For Trade Marks see:
· LAWSA First Reissue (Vol 29, paras 1306)
Page 261 of  2 All SA 260 (T)
Cases referred to in judgment
A Essack Family Trust v Kathree 1974 (2) SA 300 (D)
Abdulhay M Mayet Group (Pty) Ltd v Renasa Insurance Co Ltd and another
1999 (4) SA 1039 (T)
Bata Ltd v Face Fashions CC and another 2001 (1) SA 844 (SCA)
Bayerische Motoren Werke Aktiengesellschaft v BW Tech, unreported, case
number 4990/04 (T)
Beecham Group plc v Triomed (Pty) Ltd  4 All SA 193
(2003 (3) SA 639) (SCA)
BOE Bank v Trustees, Knox Property Trust  1 All SA 425 (D)