factually incorrect to state that the parties' respective markets differ substantially. On the respondent's own
version, 30% of its market is derived locally. The respondent seeks to dismiss the possibility of confusion of the
remaining 30%.
25.
Ad para [5.12]
The test is not whether actual instances of confusion have occurred but rather whether there exists a likelihood
of confusion.
26.
Ad para [5.13]
The Objector is entitled to rely on trade mark infringement and dilution in order to show that the respondent's
name is likely to cause damage to the business of the Objector. It is submitted that the Objector's allegation of
trade mark infringement requires no further evidence to be put forward by the Objector. The respondent is
making use of a trade mark which is confusingly similar to the Objector's registered trade mark Town Lodge in
relation to services which overlap directly with those of the Objector. With regard to the Objector's claim of
dilution, the Objector requests the Honourable Registrar to employ a common sense practical approach. The
notoriety of the Objector's trade mark Town Lodge is wellknown in South Africa and it is not necessary in this
forum to provide the extent of evidence which would be required to prove a claim of dilution in the High Court.
27.
Ad paras [5.14][5.16]
We refer to what is stated in para [17] above. It cannot be denied that the Objector's trade mark Town Lodge
has, in any event, becoming distinctive through extensive use in South Africa over several years.
28.
Ad para [5.17]
We refer to what is stated in paragraph [15] above.
29.
Ad paragraph [6]
The Objector resents the implication that its election to proceed in a less costly and less formal forum is
indicative of any bad faith on its part.
30.
Ad para [7]
These allegations have already been dealt with by the Objector above.
We request the Honourable Registrar to invoke the provisions of section 20(2) of the Close Corporations Act and to
order the respondent to change its name to one which is not confusingly similar to the Objector's wellknown trade
mark Town Lodge.
We await the decision on the merits."
Page 56 of [2008] 2 All SA 34 (C)
[15] I will come back, towards the end of this judgment, to the socalled "Disclaimer" relevant to the agreement
between second respondent in these proceedings, and Town House. For the moment, it is fair to say that the
correspondence between the attorneys above clearly, if disputatiously, sets the scene, and goes a long way
towards defining the issues for my determination. As appears from all the correspondence, the main
application, seeks to set aside the Order of the Registrar of Close Corporations that held that the name Cape
Town Lodge CC was undesirable and that the applicant was ordered to change it. The applicant wants the
Court to dismiss the objection by its call to this Court to set aside the Registrar of Close Corporation's
decision aforementioned. In opposing the relief sought by the applicant, the second respondent
simultaneously counterapplies for the relief set out in the counterapplication notice, which essentially is that
the applicant must be interdicted and restrained from infringing its trade mark numbers 1989/10400 Town
Lodge and 1988/01263 Town Lodge Limited, or any other mark deceptively or confusingly similar to either of the
two registered marks.
[16] The respondent further seeks to interdict the applicant using, in the course of trading, the trade mark Cape
Town Lodge in relation to its hotel or similar services or using any other mark that might be deceptively or
confusingly similar to its trade marks. Similarly, the applicant is sought to be interdicted from infringing the
trade marks or in using in the course of trade any mark that might take unfair advantage of the distinctive
character of its marks. The applicant is also sought to be interdicted from passing off its business and hotel
services as those of the respondent by using the mark Cape Town Lodge in the course of its trade since that
might cause confusion or deceive the public. The respondent also seeks an order that would compel Cape
Town Lodge CC to remove Cape Town Lodge from all material, and where the mark is inseparable or incapable of
being removed from such material as has been identified, such material should be delivered to it.
[17] Further, the respondent wants an inquiry to be made into such damages as it has suffered or any royalty that
would be payable to it consequent upon the infringement of its marks and/or the passingoff of its business
and services by the applicant, such enquiry contemplated to be run and governed by the Rules of Court soon
after an order prayed for has been made.
In the proceedings before me, the approach by the second respondent (respondent) was that the
undesirability of the name Cape Town City Lodge CC, and the fact that it is calculated to cause damage to the
business of the Objector within the meaning of section 20(2) of the Close Corporation Act must be dealt with
as a separate issue from the issues raised in the counterapplication. The contention was that the
undesirability of the name should be determined on the basis of whether the public is likely to be confused
through the applicant's use of Cape Town Lodge given that the respondent's registered trade mark was Town
Lodge.1
[18] In this regard, the main contention about the undesirability of Cape Town Lodge as articulated by the
respondent is that the name is deceptively or confusingly similar to Town Lodge. To that extent it is an
infringement of