What followed was a neat illustration of
passing-off principles, a reminder that even everyday words can become
distinctive in the right commercial nest, and a warning that a rebrand is not a
resurrection unless your public-facing footprints are properly swept away.
The Background: When Two Phoenixes Occupy
One Perch
Phoenix International Logistics has been
trading under its name since 2005 which is a substantial uninterrupted nineteen-year
run in a notoriously relationship-driven industry. The respondent, Blaque
Cherry Logistics, later began trading as “Phoenix Logistics,” prompting the
applicant’s November 2023 cease-and-desist. The respondent’s attorneys
initially folded almost instantly, undertaking to “immediately refrain” from
using the name.
But instead of a clean break, the
respondent rebranded to “Phoenix Group SA” which is a move that may have sounded
different internally, but, as the Court later explained, looked very much like
the same bird to the average consumer.
Then, in 2025, nearly two years after the
undertaking, the applicant discovered:
• A SARS cargo carriers list still
identifying the respondent as t/a Phoenix Logistics
• A professional profile of the
respondent’s sole director reflecting Phoenix Logistics
• The respondent’s website trading as
Phoenix Group SA
This sparked a supplementary affidavit,
objections, counter‑objections, accusations of tactical manoeuvring, and a
“complex factual substratum.”
Procedural Sparks: The Court Lets the
Evidence In
The respondent attacked the applicant’s
supplementary filing as a late-stage rescue attempt. It also cried non‑joinder,
complained about a confirmatory affidavit dated before the founding affidavit,
and challenged the authenticity of the SARS listing.
The Court allowed the supplementary
evidence regardless, emphasising that it was recent, relevant to ongoing
conduct, and caused no prejudice because the respondent had fully answered it.
The Legal Core: What Makes a Phoenix Your
Phoenix?
South African passing‑off law requires:
1. A reputation at the time the respondent
entered the market
2. A misrepresentation likely to
deceive
3. A likelihood of harm
The Court found all three comfortably
established.
Reputation? Yes — 19 Years of It
The respondent never seriously disputed
that the applicant had goodwill in “Phoenix International Logistics.” The judge
noted that, while “Phoenix” is a common word, it served as the distinctive
identifier in combination with “International Logistics.” The Court stressed
that this did not create a monopoly over “Phoenix” in all trade, only within
logistics.
Misrepresentation? The Dominant Element
Carries the Day
The Court held that:
• “Phoenix” is the dominant, memorable
element of both names
• “Group SA” and “International Logistics”
are generic descriptors
• Both operate in the same field
A consumer might assume affiliation, a
division, or a rebrand, all classic passing‑off risks.
Residual Confusion: The SARS Listing
Becomes the Smoking Feather
The SARS entry dated October 2025, showing
t/a Phoenix Logistics, became decisive. It contradicted the respondent’s
assertion that all confusion had been cured by January 2024. Combined with the
director’s professional profile still referencing Phoenix Logistics, the Court
found clear evidence of continuing misrepresentation.
Order: This Phoenix Must Find a New Nest
The Court granted a final interdict
prohibiting the respondent from using:
• “Phoenix Logistics”
• any name incorporating “Phoenix” that is
confusingly similar in the logistics sector
It also ordered the respondent to update
SARS and all registries within 30 days and awarded costs including two counsel.
Critical Eye: What Does This Judgment Mean?
• The Court did not grant a word
monopoly, only sector‑specific protection
• The SARS and online evidence showed current, not historical, misrepresentation
• The Court based its reasoning on likely
confusion, not mere association
• The initial undertaking supported the
applicant’s reputation in context
• Common-word arguments fail where long use
creates distinctiveness in a field
1. A mythical bird can become a trade
identifier.
3. Courts favour updated evidence in
ongoing passing‑off disputes.
4. Sector context matters more than company
register statistics.
5. Perception rules: consumers rely on
imperfect recollection; businesses must rely on perfect name hygiene.
