development. It follows that the four registrations stand to be revoked. I have considered the possibility to
excise some of the services instead of revoking the registrations but on the information before us it is only
possible in relation to class 35 by deleting the words "management services". Whether the Association may
be able to apply to have the name registered in some of the classes if the relevant services are more
appropriately defined does not have to be decided.
The undesirability of the CC name of the appellant
[52] The Close Corporations Act provides that any interested person may within a period of two years after the
registration of a founding statement apply to court for an order directing the corporation to change its name
Page 426 of [2010] 2 All SA 409 (SCA)
on the ground of undesirability or that such name is calculated to cause damage to the applicant, and the
court may on such application make such order as it deems fit (section 20). The Association sought and
obtained relief under this provision.
[53] The basis of its case was that the appellant's name contained its registered trade marks and that
consequently its name was undesirable. The court below accepted the submission and held that since the
Association had by virtue of its registration a vested right in the name Century City the presence of that name
in the appellant's name was undesirable. In view of my earlier finding that the Association did not have such a
right, the basis of the Association's case floundered.
[54] In any event, the names of the two corporations describe their differences: the one is a property owners'
association and the other is an
View Parallel Citation
apartment property services close corporation. The only similarity is that both are linked to Century City. That
in itself is insufficient to justify a conclusion that the business of the one is connected with the business of the
other. I therefore conclude that the court below erred in granting this relief.
Passingoff
[55] The Association's case based on passingoff fails on the same basis. The thrust of the Association's complaint
related to the appellant's descriptive use of Century City, namely, identifying the location of the properties in
which it dealt by reference to Century City. The court below accepted this submission on the basis of its
finding that Century City is not a geographical location but a valid trade mark findings that I have rejected
earlier. The objections that apply to the appropriation of a geographical location as a trade mark apply here
too. It is difficult to conceive of a protectable reputation based purely on the name of a geographical location
that is inherently descriptive of the origin of the particular service.
Costs
[56] Lord Esher once said this about patent cases:
"It seems to me that there is something catching in a patent case, which is that it makes everybody argue, and ask
questions to an interminable extent a patent case with no more difficult question to try than any other case instead
of lasting six hours is invariably made to last at least six days, if not twelve.
Well, then, the moment there is a patent case one can see it before the case is opened, or called in the list. How can
we see it? We can see it by a pile of books as high as this [holding up the papers] invariably . . . Now, what is the
result of all this? Why, that a man had better have his patent infringed, or have anything happen to him in this world,
short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is
ruined. Whose fault is it? It is really not the fault of the law; it is the fault of the mode of conducting the law in a
patent case" (Ungar v Sugg [1892] RPC 113 at 1161).
[57] More than a century later trade mark cases have also been infected by the virus. Schutz JA once began a
judgment with these words:
"A record of 720 pages and heads of argument totalling 57 pages have been placed before us in order to allow us to
decide whether the wrapping of its coconut biscuits used by one manufacturer passes itself off as the wrapping of
Page 427 of [2010] 2 All SA 409 (SCA)
another manufacturer of similar biscuits" (Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235
(SCA) [also reported at [2001] JOL 8280 (SCA) Ed] at paragraph [1]).
Not to be outshone, the parties in this case presented us with a record of 1 557 pages. Trade mark cases
have developed into paper wars in the apparent belief that the weight of the papers of the respective parties
determines the merits or that the threat of cost orders would force the one or other party to capitulate. This
case is yet another example of this
View Parallel Citation
unacceptable practice. Courts of first instance should act firmly and disallow costs, especially between
attorney and client. The Association began the war of attrition by attaching volumes of irrelevant paper. The
appellant complained but responded in kind. On appeal the Association, ironically, felt aggrieved that the