at point 18 ("DJ1" p 13) which is also clearly defined on the registration, exhibit "Z". A corresponding rim has not
been repeated on exhibit "X". It can hardly be argued that this amendment or alteration, to the extent that it
exists, in any way substantially affects the identity of the mark. The Registrar considered this omission to constitute
a material difference, in that it gives the main body a more rounded appearance. It was not admitted by the
appellant, as was suggested by the Registrar, that this ring constituted a distinctive feature, and such a finding is
not supported by the evidence.
The other differences complained of do not readily appear from the exhibits which were made available to us. I
am satisfied that even the minute analysis made by the deponent does not support a finding that the mark has
been substantially affected by the introduction of the drawings.
The respondent sought also to introduce an argument based on the provisions of section 10(2) of the Trade
Marks Act 62 of 1963, which reads as follows:
"10(2) No registration of a container in terms of subsection (1) shall prevent the bona fide use by others of any utilitarian or
functional feature embodied in such container."
As was pointed out by Mr Puckrin, who appeared for the appellant, the section merely prevents the trade mark
proprietor from restraining others from the use, in a bona fide manner, of wholly utilitarian or functional features
embodied in containers. The application under consideration is for an amendment of the
Page 132 of [1997] 3 All SA 125 (T)
trade marks to be represented more clearly in the amended form. An objector could possibly apply for the
expungement of the trade marks, but would then have to do so on the basis that he is an interested person. No
such allegations are made, and in any event this is not the proper forum to so object. It follows from that which has
been said, that I am of the opinion that the Registrar ought to have allowed the amendments, and therefore that
the appeal must succeed. I am satisfied also that the employment of two counsel by the appellant was warranted.
The following order is made:
1
The appeal is upheld with costs, such costs to include the costs of two counsel.
2
The order of the Registrar is set aside and substituted by the following:
"The applications to amend trade mark registrations 82/5521 and 82/5522 in classes 3 and 5 respectively, by
the introduction of the drawings contained in annexure 'X' hereto [see p 130], showing a perspective, side, top
and bottom view of the container, is granted, with costs including the costs of counsel."
DU PLESSIS J
I agree.
DE VILLIERS J
I agree.
For the appellant:
CE Puckrin SC and JN Cullabine instructed by Spoor & Fisher, Pretoria
For the respondent:
MM Jansen instructed by Adams & Adams, Pretoria