Eastman Photographic Materials Co Ltd, In re v The ControllerGeneral of
Patents, Designs and Trademarks 1898 AC 571 (HL) Referred to
417
GE Trade Mark [1973] RPC 297 (HL) Discussed
424
General Electric Co v The General Electric Co Ltd [1972] 2 All ER 507 (HL)
Discussed
424
Inter Lotto (UK) Ltd v Camelot Group plc [2003] EWCA Civ 1132
Discussed
419
Page 412 of [2010] 2 All SA 409 (SCA)
Mid Sydney Pty Ltd v Australian Tourism Co Ltd and others [1998] FCA
1616 Referred to
418
Reed Executive Plc and others v Reed Business Information Ltd and others
[2004] EWCA Civ 159; [2004] RPC 40 Referred to
414
Yorkshire Copper Works Ld's Application 1953 (70) RPC 1 (CA) Referred
to
418
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Judgment
HARMS DP:
[1] This appeal relates in the main to trade mark infringement. The present respondent, Century City Property
Owners' Association, a section 21 company, is the trade mark owner. There are also ancillary or alternative
issues, namely passingoff and the question whether the corporate name of the appellant, the alleged
infringer, is undesirable in terms of the provisions of section 20 of the Close Corporations Act 69 of 1984. The
court below (Davis J) granted all the relief sought by the Association and this appeal is with its leave.
[2] Century City is a huge commercial and residential "development" on some 300 hectares of land next to the
N1, the main road leading northwards from Cape Town. It falls within the municipality of the City of Cape
Town and, more particularly, the suburb, Montague Gardens. The development began in earnest in 1997 and,
according to the Association's founding affidavit, it was always the intention that Century City would be one
development, independently functioning and operating, providing a cross pollination of services and industries
to the owners and tenants within Century City. The land was in due course
View Parallel Citation
enclosed and a business park, a mid to upper echelon housing development and office blocks were erected. A
road, called Century City Boulevard, was constructed which serves as the main artery to the development,
and a theme park, Ratanga Junction, and the "famous" Canal Walk Shopping Centre were erected.
The trade mark registrations
[3] The Association, a nonprofit home owners' association, holds a number of trade marks in different classes,
some consisting of the name "Century City" and others of devices (more correctly, wordanddevice marks)
containing this name mark and interlocking Cs. The Association did not apply for these trade marks they
were assigned to it by the developer of Century City. For a reason that can only be described as baffling the
trade mark registrations on which the Association relied in its notice of motion appear for the first time at the
end of the papers whereas other registrations, on which no reliance was placed, were attached to the
founding papers.
[4] The argument in this Court focused on the infringement of the mark "Century City" registered under
registration number 1997/14283 in class 42 (as it then existed) for:
"Retail, wholesale, marketing, distribution, hiring, leasing, mail order and merchandising services of all kinds;
providing of food and drink including bars, bottle stores and restaurants, snack bars, cafeterias, roadhouses,
canteens, fastfood outlets; catering services, cocktail lounge services; temporary accommodation, hotels, hotel
management; motels, tourists hostels, accommodation bureaux and services all for reserving accommodation at
hotels, boarding houses and the like; arranging, hiring and providing facilities for expositions, exhibitions and the like;
services ancillary to the aforegoing."
Page 413 of [2010] 2 All SA 409 (SCA)
[5] The remaining name marks that were the subject of the application are these:
1997/14280 CENTURY CITY in class 35 in respect of
(a)
"advertising and business services, including, but not restricted to township and residential development,
management services, organisation and consultation, evaluation services, import and export services, promotion,
publicity, business research, planning";
(b)
1997/14281 CENTURY CITY in class 36 in respect of