(Pty) Limited v Rink Estates (Pty) Limited 1979 (2) SA 276 (E) on 286H that:
'Apart from the aforegoing factors it must be emphasised that even if confusion does occur
in a given case, the Court's protection is not afforded where such confusion is the result of
careless or thoughtless conduct on the part of the persons deceived; that protection is only
granted where reasonable people applying ordinary attention to the matter, would be
deceived.'
In the past, the above Honourable Registrar has referred to this judgement.
6.2.2 This view of the Court should, with respect, be seen in perspective:
6.2.2.1
Firstly, it is necessary to have close regard to the ratio decidendi of the Court. This can
be gleaned from the remarks made on p 286D, where the Court said the following:
'[E]state agents do not generally have regular clients in the sense of persons who
patronise them often. The number of times that the ordinary man buys fixed
property in his lifetime can probably be counted on less than the fingers of one
hand.'
The Court also said the following on p 288B:
'When it comes to verbal transmissions of these rival names. . . it is important to
have regard to the importance of a property transaction to the ordinary reasonably
careful person. In my view, when a salesman or erstwhile satisfied client makes a
recommendation of an estate agent to such a person. . . one would expect that
ordinary care would prompt his making a note of the estate agent's name . . If the
prospective client knows he has forgotten the name and is content to proceed in
ignorance to contact the estate agent who he thinks was recommended to him, then
confusion is a probability. Such action in ignorance is, however, unlikely in my view
in the context of this case and in context of the type of business in question.' (Own
emphasis).
6.2.2.2
These quotations clearly show that the ratio decidendi of the decision of the Court was
Page 41 of [2008] 2 All SA 34 (C)
based on the particular facts of the case, more specifically to the type of business in
question.
6.3
Undesirability
It is submitted that the use of the name Cape Town Lodge CC amounts to trade mark infringement in
terms of sections 34(1)(a) and (c) and section 35 of the Trade Marks Act as well as to passingoff and/or
unlawful competition in terms of the common law.
6.3.1 I n t h e c a s e o f Standard Bank of South Africa Limited v United Bank Limited & another
1991 (4) SA 780 (T), the Court held that the trade mark Access was infringed by the use of the
trade mark Equity Access Plan. This case has two implications for the current issue:
6.3.1.1
Firstly, the Court found that Access was the prominent feature of the offending marks
(808G and 809D). The Objector's Town Lodge mark is such a well known trade mark
that use of Town Lodge by the respondent is likely to cause confusion;
6.3.1.2
It is illuminating to note the view of the Court regarding the possibility of confusion when
regard is had to the specific 'type of business' (in the sense used in the Link Estates
case (supra) encountered in this case. At 801I to 802B the Court says the following:
'Given all the circumstances, do I think that there is a probability that a substantial
number of persons will be at least confused, if not deceived? The answer is that I do.
Take the case of the man who has watched Standard's national television
advertisement (and who, like the man in the bar, may also have had a drink or two).
Suppose that he is thinking of buying a house and taking out a bond. Suppose that a
few days later he sees, somewhere, an advertisement for United's Equity Access
Plan. Given the fact that he does not have the two marks before him sidebyside,
and that memory is often imperfect, may this not lead him to a United branch to
open discussions, or may he not at least be confused? In the case of an individual I
see this as perfectly possible. If that be so, it translates itself into a probability that a
substantial number of persons will be so confused.'
It must be stressed that this view was adopted after the Court had expressly considered
the following fact at 801G:
'Also, I think that I must take into account that with many of the customers, at least,
the bond transaction will form part of the largest transaction which they will
undertake in their lifetime.'
Page 42 of [2008] 2 All SA 34 (C)
The Court, therefore, after considering the same facts, came to a conclusion different
from that reached in the Link Estates case. In other words, even if copious allowance is
made for the latter case's ratio decidendi, the approach of that court is still, with
respect, not beyond all reproach.
6.3.2 Section 1(1.5) of The Registrar's Directive on Names of Companies as published in Government
Gazette Notice 978 of 1995, makes reference to the undesirability of company names. An