stated:
'It seems to me that it runs the risk of having the article similarly described in the trade names of rival
traders. If any such monopoly can be gained by such means it appears to me that, from the point of
view of the public, the sooner the provisions of the Companies Act 61 of 1973 in that respect are altered,
the better. But I think it is precisely because a company cannot secure any such monopoly by such
registration that it may register such a name.'
5.15
Similarly, in Office Cleaning Services Ltd v Westminster Window and General Cleaners Ltd (1946) 63
RPC 43 Lord Simmonds held:
'It comes in the end, I think, to no more that this, that where a trade adopts words in common
use for his trade name, some risk of confusion is inevitable. But the risk must be run unless the
first user is allowed unfairly to monopolise the words. The Court will accept comparatively small
differences as sufficient to avert confusion. A greater degree of
Page 51 of [2008] 2 All SA 34 (C)
discrimination may fairly be expected from the public where a trade name consists wholly or in
part of words descriptive of the article to be sold or the services to be rendered.'
5.16
In other words:
5.16.1Where an objector has chosen to combine words in common use such as 'Town' and 'Lodge' it
must expect confusion is inevitable;
5.16.2The risk attendant thereon is a risk the objector must face because he has chosen the common
words;
5.16.3A court will fail an objection based on such a name combination (or trade mark combination) even
if the name objected to features only comparatively small differences.
5.17
6.
7.
In the present case the difference is not even 'comparatively small' as 'Cape Town' is substantially
different in meaning and effect as has been shown above and is not the equivalent of 'Town'.
Bad Faith
6.1
Following upon the preceding paragraph it is noteworthy that despite its demand the objector has not
proceeded in the High Court as threatened.
6.2
Instead it now suggests before the Honourable Registrar that the respondent is acting in bad faith and
mala fide. This defamatory allegation (in relation to which the respondent's rights are reserved)
postulates that the recipient of a letter of demand (the respondent) who is legally entitled to accede to
the demands set out therein and does not do so is mala fide and acting in bad faith.
6.3
Apart from its defamatory nature, the allegations set out in paragraph [6] of the objection are simply
absurd.
Conclusion
7.1
The objector seeks to deprive the respondent of a corporate name which is entirely appropriate and
consonant with the business of the respondent. The elements of the name are in the common domain
and describe the geographical location of the respondent's lodge that is Cape Town and its nature ie a
lodge, which provides services within the common dictionary meaning of the term;
7.2
Both elements aforesaid are also common elements in the corporate names on the Companies' and
Close Corporation's Registers and the respondent's name was appropriately approved by the Registrar
in the first instance.
7.3
Thus the respondent respectfully requests the Honourable Registrar to refuse the objection raised
against its close corporation name by the objector."
[12] In letters dated 2 April 2003 and 8 July 2003, the applicants' lawyers registered their unhappiness that the
Objector had not filed a reply to their letter of 23 September 2002 and in both letters, they prevailed upon the
Registrar to confirm to them that the objection had been dismissed. However, the Registrar, without
correcting their impression that there had been no reply to their answer contained in the letter dated 23
September 2002, wrote to the applicants' attorneys on 29 August 2004 and told them that upon due
consideration of the merits regarding the objection, the applicants' name objected to was undesirable. The
Registrar
Page 52 of [2008] 2 All SA 34 (C)
thereupon ordered the applicants to change the name of their close corporation within 60 days of the date of
his letter of 29 August 2004, as aforesaid. It was in response to that order that the applicants launched the
proceedings on 22 September 2004.
[13] In response to the application, and in launching their counterapplication, the respondents maintained that
they had responded to the applicants' answer to their original letter of complaint and objection to the
Registrar of Close Corporations dated 8 July 2002. The respondents' lawyers maintained that they had replied
to the applicants' submissions, made in the letter of 23 September 2002, by way of their reply letter dated 28
May 2004. The applicants' lawyers, right up to the day the matter was argued, steadfastly maintained that
they never received the applicants' replying submissions, and had therefore been disadvantaged in not
having been able to have sight of the replying submissions before a final decision was taken by the Registrar.
[14] The respondents' lawyers' response, it was alleged, had been sent to one Mr EN Manyelo, apparently the