activities or in respect of which it may have a "pecuniary or proprietary" interest.
[14] Mr Wheeldon, for t he applicant, however, argued that the term "interested person" should be given a
meaning which would also accommodate the bona fide aspirations of a competitor in expanding its business
to ARG related fields. I agree with Mr Wheeldon. His approach is, in principle, supported by the approach in
South African Football Association v Sandton Woodrush (Pty) Limited3 where Spoelstra J said the following at
239:
"The first respondent contends that in order to have locus standi to institute these proceedings the applicant must
show that, as at the date of the institution of the proceedings, it was a 'person aggrieved' within the meaning of
s 33(1) of the Trade Marks Act 62 of 1963 ('the old Act') or an 'interested person' within the meaning of s 24(1)
of the Trade Marks Act 194 of the 1993 ('the new Act'). The new Act commenced on 1 May 1995 and repealed the
old Act.
I do not consider the change of wording of 'person aggrieved' in s 33(1) of the old Act to 'interested person' in s
24(1) of the new Act of any real significance in this matter. It is clear from the cases which considered the term
'person aggrieved' that it refers to persons 'who are in some way or other substantially interested in having the
mark removed from the register' (Ritz Hotel Ltd v Charles of the Ritz Ltd and another 1988 (3) SA 290 (A) at
308AB) and 'a genuine and legitimate competitive interest in the trade to which the offending mark relates'
(Danco Clothing (Pty) Ltd v NuCare Marketing Sales and Promotions (Pty) Ltd and another 1991 (4) SA 850 (A)
at 855CD). In Valentino Globe BV v Phillips and another 1998 (3) SA 775 (SCA) [also reported at [1998] 4 All
SA 1 (A) Ed] at 781BD Harms JA states:
Page 265 of [2006] 2 All SA 260 (T)
'The onus rests upon the applicant for removal to establish, as a reasonable possibility, that he is a person
aggrieved. For this purpose it is assumed that the trademark is wrongly on the register. A wide and liberal
interpretation is given to the term "person aggrieved". The applicant must have a substantial interest in the
mark or must substantially be damaged by it remaining on the register. The fact that the registered mark
constitutes an obstacle to the registration of a mark applied for by the applicant is prima facie evidence of
an interest, but if that application for registration was in bad faith, vexatious or without any substance, the
prima facie inference is negated.'
By abandoning the term 'person aggrieved' and embracing the term 'interested person' in the new Act, the
Legislature has simply embodied in the legislation the test applied by the Court when investigating whether or not
a person was aggrieved by the registration of a trade mark. The same considerations seem to apply as did
before the new legislation came into force. I shall approach the matter on this basis."
To my mind the applicant is an 'interested person' as such term is understood in terms of section 27(1) and
section 24(1) of the Act. The applicant is an "interested person" not only in, relation to trade mark
registration 1942/00516/2 Shatterprufe but also in relation to all the Shatterprufe registrations registered in
the name of the first respondent as all these registrations are either directly related to the ARG market in
which the applicant trades or are registered in relation to goods and services related, .and similar, to those
relevant to the ARG market. The applicant most certainly does not fall in the category which was described
by Spoelstra J as not bona fide or as vexatious.
The history of the respondent and its business
[15] The application is based on the respondent's Shatterprufe trade marks allegedly not having been used by
the respondents and, in addition, that the Shatterprufe registrations do not have the necessary capacity to
distinguish the products of the respondents from the products of others.
[16] In 1897, in Cape Town, the Brodie family established The Plate Glass Bevelling and Silvering Company
Limited that trade in "plate" and "sheet" glass. It soon expanded into other centres in South Africa. In 1927,
one Emmanuel Brodie visited and established links with Ford and General Motors, the American companies
that had then recently commenced business in Port Elizabeth, and commenced supplying glass to them. A
company established by the Brodie family then commenced developing a laminated automotive safety glass.
It adopted the trade mark Shatterprufe in 1929 and in 1931 the first consignments of this laminated
automotive safety glass were sent to Ford and General Motors. In 1935 the Brodie family relocated their
business to Port Elizabeth, which business was acquired by a company called "The Shatterprufe Safety Glass
Company (Pty) Ltd" ("the Shatterprufe Company"). In 1942 the Shatterprufe Company applied for and
registered the trade mark Shatterprufe in the (then) Class 15 under the 1916 Trade Marks Act.
Accompanying this application was an affidavit deposed to by Emmanuel Brodie proving the factual
distinctiveness of the Shatterprufe trade mark. The affidavit, which made out a case for factual
distinctiveness of the Shatterprufe trade mark records extensive sales of products depicting the Shatterprufe
trade mark
Page 266 of [2006] 2 All SA 260 (T)
from 1930 until 1942 and shows that Ford Motor Company had used Shatterprufe glass since 1935, a fact
that still exists today. During the 1950's and 1960's the Shatterprufe Company was at the forefront of
technological advancements in the automotive safety glass industry.
[17] During the 1960's the Shatterprufe Company extended its range of safety glass to include "laminated
building glass". The Shatterprufe Company underwent various changes in ownership in the form of mergers
and public listings. In 1976 the Shatterprufe Company extended its business to Australia and the United
Kingdom and, in South Africa, at the time, it had 15 factories and 223 trading units operating in 75 centres in
South Africa.