South Africa
Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Ltd 1976 (1) SA 530 (T)
Bata Ltd v Face Fashions CC and another 2001 (1) SA 844 (A)
Hollywood Curl (Pty) Ltd and another v Twins Products (Pty) Ltd (1) 1989 (1) SA 236 (A)
Organon Laboratories Ltd v Roche Products (Pty) Ltd 1976 (1) SA 195 (T)
SmithKline Beecham Consumer Brands (Pty) Ltd (formerly known as Beecham South Africa (Pty) Ltd v Unilever plc
1995 (2) SA 903 (A) F
The Upjohn Company v Merck 1987 (3) SA 221 (T)
United Kingdom
"Bali" Trade Mark [1969] RPC 472 (HL)
Canon Kabushiki Kaisha v MetroGoldwynMayer Inc (formerly Pathé Communications Corporation) [1999] RPC 117 (ECJ)
Sabel BV v Puma AG, Rudolf Dassler Sport [1998] RPC 199 (ECJ)
Semigres Trade Mark [1979] RPC 330
The CocaCola Co of Canada Ld v PepsiCola Co of Canada Ld [1942] RPC 127 (PC)
View Parallel Citation
Judgment
HARMS JA:
[1]
The appellant applied during 1988 for the registration of the trade mark Cowbell in conjunction with a cow
device in class 29. Opposition
View Parallel Citation
from the respondent, the owner of a number of trade marks in this class, based principally upon the provisions
of section 17(1) of the Trade Marks Act 62
Page 244 of [2001] 4 All SA 242 (A)
of 1963, led to a finding by the Deputy Registrar in the appellant's favour. This, in turn, gave rise to a
successful appeal by the respondent to the Full Court of the Transvaal Provincial Division (per Van Dijkhorst J,
Van der Walt and McCreath JJ concurring). Hence the present appeal.
[2]
The appeal to this Court was ultimately noted without leave having been obtained from either the Full Court or
this Court. Initially, acting on the advice of counsel, the appellant sought leave from the Full Court. The
respondent's attitude was that leave was not required. Disagreeing, the appellant proceeded with its
application. In the event the Full Court (per Van der Walt J, Van Dijkhorst and KirkCohen JJ concurring) upheld
the respondent's point of view and struck the application from the roll with costs.
[3]
Because of the delay caused by the abortive proceedings the appellant's notice of appeal was lodged out of
time and there is before us an application for condonation. Before dealing with it, it is necessary to consider
whether leave to appeal is a jurisdictional requirement because although Van der Walt J's judgment is not as
such the subject of this appeal, the question remains whether the appeal is properly before us. The Full Court
judgment does not bind us. Unfortunately, we did not have the assistance of argument since both parties
assumed that the correctness of that judgment could not be raised in this appeal.
[4]
As mentioned, the application for the registration of the trade mark was launched in terms of the 1963 Act
which has since been repealed and superseded by the Trade Marks Act 194 of 1993. The latter provides in
section 3(2) that
''[a]ll applications and proceedings commenced under the repealed Act shall be dealt with in accordance with
the provisions of that Act as if it had not been repealed.''
The question, simply put, is whether appeal proceedings in relation to an application for registration which
commenced under the 1963 Act should be dealt with in accordance with the provisions of that Act. Before the
Full Court it was argued that applications for leave to appeal are procedural steps which should follow the
current state of the law. That argument was based upon a wrong premise. An application for leave to appeal,
normally a procedural step, is necessary because leave is a jurisdictional requirement. But jurisdictional
requirements can hardly be termed ''procedural''. In any event, although as a general rule procedural steps
should follow the current state of the law, that rule has to yield to any contrary intention appearing from the
statute in question. In this case it seems to me that the intention of the Legislature was that all applications
(including those for registration of trade marks) commenced under the 1963 Act should in all respects be dealt
with thereunder.
[5]
This finding leads to a consideration of whether the appellant required leave to appeal under the 1963 Act.
Section 63 dealt with the matter. Its scheme was as follows. The decision of the Registrar was