tag:blogger.com,1999:blog-2617183138118819994.post766129260272456493..comments2024-03-05T17:50:31.778+02:00Comments on Afro-IP: SAGA is teed offUnknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-2617183138118819994.post-34723344166668287222009-11-18T08:12:39.640+02:002009-11-18T08:12:39.640+02:00This judgement from the Western Cape High Court ap...This judgement from the Western Cape High Court applies a clear no-nonsense approach to company name objections, but it appears not to follow the recent decision of the SCA in Polaris v The Registrar of Companies (595/08) [2009] ZASCA 131 (30 September 2009).<br />The test for undesirability of a company name in cases based on confusion is practically identical to that in passing-off, i.e. that the objector must have a reputation and there must be a likelihood of confusion. In the SAJGA case, Traverso, DJP found confusion unlikely and relied on the absence of any evidence of actual confusion to demonstrate that public confusion is unlikely.<br />However, the SCA found in the Polaris case, that the objector provided sufficient proof of its reputation when it merely alleged that it had exposure in the media and in the distant past, it did some business in South Africa and met with a number of South African busness people, without a single corroborating affidavit. As proof of confusion, the objector merely alleged that it receives enquiries from South Africans about whether or not it is associated with the Appellant. The Appellant filed several affidavits from experts in the relevant industries who confirmed that they have never hear of the objector - including one from the objector's alleged business contacts. Despite this clear evidence that the objector had no reputation in South Africa and that confusion was ulikely, the SCA applied the Plascon-Evans rule to the extent that it accepted the objector's allegations of its reputation as fact and accepted the objector's allegations that it receives enquiries as proof that actual confusion is likely.<br />If Traverso DJP followed the Polaris judgement (as I believe she was bound to do), should she not have accepted a mere statement by SAGA that confusion had occured or was likely, as sufficient evidence of confusion and ordered the SAJGA to change its name?<br />It appears that the evidentiarry burden on company name objectors has become significantly lighter after the Polaris case and given the similarity of of test, this lightening of the evidentiary burden should spill over to passing-off cases - which means that all traders should beware of the lurking objector!<br />Some of the gravity-defying gems in the Polaris judgement include: If the experts have never heard of the objector, it does not follow that there could not be someone who has hear of it.[12] The objector was not aware of anyone who was confused, but that does not mean that no-one could be confused.[27]Anonymousnoreply@blogger.com