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5.
4.5
Trade mark nos. 91/03196 City Lodge Town Lodge features the disclaimer: 'Registration of this mark
shall give no right to the exclusive use of the words, City, Town and Lodge, each separately and apart
from the mark. By agreement with the proprietor of trade mark application Nos. 88/333951.'
4.6
The effect of the disclaimers aforesaid is this. The registrant (the objector herein) acknowledges thereby
that it has no trade mark rights in the elements disclaimed ie it has no trade mark rights in either of the
words 'Lodge' or 'Town', separately. They fall in the common domain for use by all traders and are
reasonably required for use by other traders in trade.
4.7
Secondly, the registrant (the objector herein) recognises that the trade mark registrations Town Lodge
and City Lodge Town Lodge are subject to the prior rights of the owner of trade mark registration Nos.
88/333951.
4.8
Trade mark registration nos. 88/3339 03344 are registrations of the trade mark The Town House (see
annexures JS 5.15.6).
4.9
Trade mark registration nos. 88/03345 03351 are registrations of the trade mark Die Dorphuis (see
annexures JS 5.7513).
4.10
The name of the company with the aforementioned prior trade mark rights is Town House Hotel Limited,
of 60 Corporation Street, Cape Town.
The Objection
5.1
The objection is contained in the subparagraphs of paragraph [6] of the objector's document of 8 July
2002.
5.2
With respect to the objector the discussion in the case law put forward and the facts alleged (but not
proven) are not consonant with the authorities cited.
5.3
As far as the Hollywood Curl case is concerned, both the company names featured 'Hollywood', the
wellknown place name near to Los Angeles where the US film industry is mainly situated. The corporate
names in this case do not feature a common place name only the name of the respondent features a
place name the city of Cape Town. The element 'Cape Town' provides the memorable and
distinguishing feature of the respondent's corporate name in comparison with the objector's marks.
5.4
The objector's conclusions regarding the Link Estates/Rink Estates case is [sic!] set out in paragraph
[6.2.2] of the objection. It is not in dispute that both parties provide accommodation services.
5.5
The objector's reliance on the Standard Bank/United Bank is premised on the allegation that the
respondent is using 'Town Lodge'. This is not the case.
5.6
The objector can also not rely on section 1.5 of the Directive of the Registrar of Companies referred to
insofar as it has itself no trade mark rights in either 'Town' or 'Lodge' per se by virtue of the disclaimers
recorded against its trade mark registration.
5.7
As has already been recorded that the said disclaimers merely confirm the fact that the elements fall in
the common domain for use by all traders. In any event, as already emphasised, Cape Town is a city
which cannot be confused with the generic term 'Town'.
5.8
This is most relevant when regard is had to paragraphs [6.4.1][6.4.4] of the objection and the cases
mentioned therein. The
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respondent's name tells the public that it is a Lodge providing services within the dictionary meaning of
that term situated in Cape Town, a city.
5.9
It is noteworthy that because of the descriptive nature of the marks relied upon by the objector they
always feature in use in conjunction with a stylised tree. This is clearly revealed by annexure B1, B2, B3,
B4, B5, B6, B7, B8, B9, B12, B15, B16, B17, B18, B19 and B20 of the objection.
5.10
The objector's getup is entirely different as annexures 'JS 6.16.6' clearly show.
5.11
The respondent derives 70% of its business from the overseas tourist market and, in particular, such
business is sourced mainly from external tour operators for whom the designation 'Cape Town' is
primary. In this regard the respondent's market differs substantially from the local nightly stopover
market of the objector (see annexures JS 7.17.2).
5.12
Not surprisingly in the light of all the aforegoing, the objector has not put forward a single instance of
confusion between its business and that of the respondent. Absence of confusion is an important factor
to be taken into account (Peregrine Group (Pty) Ltd v Peregrine Holdings Ltd 2001 SA 187 (sic), 205EI
upheld on appeal (2001 (3) SA 1268 (SCA)).
5.13
In paragraphs [6.5][6.7] of the objection the objector then puts forward a trade mark infringement and
dilution case before the Honourable Registrar. The usual forum for such a case is the High Court.
However, for such a case to succeed in the High Court would require a substantial amount of evidence
from the objector under oath to sustain. Instead the objector has chosen to approach the Honourable
Registrar with bald allegations concerning the matter in relation to which I respectfully submit the
Registrar is not seized and must of necessity ignore.
5.14
In any event the objector cannot overcome the obstacle that its objection is based upon a combination
of common words in the public domain, namely 'Town' and 'Lodge'. The principle is long established and
was aptly recorded thus by Parker J in British Vacuum Cleaner Co Ltd v New Vacuum Cleaner Co Ltd
(1907) 2 (CHD) 328. In holding that a company cannot obtain a monopoly over descriptive words by the
device of incorporating them in a company name (on a trade mark in the respondent's submission), he