opportunities.
[39] To give some indication of the extent of the development, promotional material predating 2008 indicates that
Canal Walk, when opened in 2000, was the largest shopping centre in Africa with 125 000 square metre retail
and 9 600 square metre office space; and that in Century City more than 156 000 square metre office space
had been sold, that more than 2 000 homes had been completed, and that by 2010 more than 60 000
persons would be working and living in Century City. It is unnecessary to provide any further detail save to
say that Century City has become an important landmark.
[40] As stated earlier, the Association is a nonprofit home owners' association. Its main activity is to promote,
advance and protect the communal interests of all the owners, lessees, occupiers and visitors to Century City,
and to manage the common property. All owners and all new owners are obliged to become members of the
Association. It collects levies from its members and performs functions similar to those of a body corporate of
a sectional title development. Its services are, in the main, to supply access control, security, traffic and
parking control, provision of public transport within the development, approval of special events staged within
Century City, development control through the
View Parallel Citation
setting of design requirements and approval mechanisms, and landscaping. Finally, it is said that the
Association controls the use of the trade marks by other entities. Many of these functions are entrusted to
contractors.
[41] The Association itself describes Century City maybe hyperbolically as a city or a city within a city, and as a
commercial hub, complementary to Cape Town's central business district, and as a place. There is a post office
under the name Century City and public road signs direct the public to Century City. The public, no doubt,
refers to it as a place or location. The businesses that conduct their business there describe it as such. A
person who intends to dine at Steers or Spur or whatever restaurant at Century City will describe the
restaurant with reference to its location; and the restaurateur would do the same. Further examples abound
in the papers. Most telling is Century City Service Station a petrol station.
[42] The Association had two arguments which were supposed to dispose of the effect of these facts. The first,
which was more a statement than an argument, was that section 10(2)(b) applies to historical place names
only. No reason was proffered why such a limitation should be read into the provision and I cannot conceive
of any, especially where section 10 presupposed that the prohibition under section 10(2)(b) may kick in after
the date of registration of the trade mark. The second was that, since Century City was both a place name
and the name of a development, the provision could not be applicable. Davis J accepted this argument and
held that because the meaning of Century City flowed directly from the development of a piece of land located
in Montague Gardens it was inextricably linked to the particular development; that the trade mark right
emerged
Page 423 of [2010] 2 All SA 409 (SCA)
from the nature of the development rather than from "a dictionary meaning" or a geographical location; and
since the name did not have an "exclusively geographical meaning" it was not hit by the provision.
[43] I find it difficult to accept these propositions. The difference between a geographical location and a
development is more apparent than real. In the present context the term refers to "an area of land with new
buildings on it" (Concise Oxford English Dictionary (10ed) 2002 sv "development"). More particularly, Century
City is a geographical area, fenced and gated and secured, like many a township in this country, with a
multitude of individual owners. It differs from a suburb or village in that roads and the like do not belong to a
local authority but to an owners' association and that the Association provides some, but not all, of the
services that local authorities usually supply. Whether it is a suburb in the dictionary sense of the word
matters not.
[44] Edinburgh, for example, is inextricably linked to its burgh and was nothing but part of the development
around the castle. The fact that the town "emerged" from the castle does not mean that Edinburgh is not a
place. Most cities and towns in this country are inextricably linked to and have emerged from farm property, a
mine or river but that does not mean that they are not geographical locations.
View Parallel Citation
[45] As to the final point, the section does not require that the place name should have an "exclusively
geographical meaning". Some geographical names are, for instance, also surnames as was the case in Peek
and Cloppenburg (supra) but that does not exclude the operation of the prohibition. As I have sought to
explain earlier, the word "exclusively" in section 10(2)(b) ensures that a geographical name, which is part of a
"complex" trade mark does not fall within its purview (Nordmilch eG v Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) [2004] ETMR 70 at paragraphs [45] and [55]) and not that the name
may not have any other significance.
[46] Having concluded that Century City has become the name of a geographical location the next matter to
determine is whether it is a sign or an indication which may serve, in trade, to designate the geographical
origin of the services covered by the registrations. There is nothing in the evidence to suggest that in relation
to some of the services covered by the class 35 registration, for instance business services relating to
township and residential development and management services, it may serve this purpose. On the other end
of the spectrum, the evidence clearly establishes that the public perceives it and businesses regard it as a
place where entertainment is offered by way at least of cinemas and a theme park. This means that the class