Aspen, armed with its
registered MYBUCOD mark (class 5, pharmaceuticals), took on Adcock’s use of the
lookalike LENBUCOD. Back in May 2025, the Court benched Adcock with an
interdict stopping LENBUCOD sales, ordering up destruction of packaging, and
awarding Aspen its costs.
But Adcock wasn’t ready to
tap out. They filed an appeal, hoping to stall enforcement. Aspen countered
with a section 18(3) Superior Courts Act application, basically asking the
Court: “Don’t just give us the win, let us enforce it now, even while Adcock
appeals.”
Justice Millar agreed,
delivering some serious legal gains for Aspen:
Exceptional circumstances: If
Aspen had to wait until a likely late 2026 appeal, its victory would become a
“vacuous gesture.” Trade Mark rights aren’t just for show and meant to protect
in real time.
Irreparable harm to Aspen:
In just six months, Adcock had pumped R8.4m (around USD500k) worth of LENBUCOD
product into the market. Left unchecked, that level of trading would decimate
MYBUCOD’s commercial value.
No irreparable harm to
Adcock: Adcock knew MYBUCOD was registered and disputed but
carried on anyway. If they eventually win on appeal, Aspen has promised to pay
damages to repair any harm caused, like a physio on a torn muscle. The court
also found that market re-entry was quite possible for Adcock (in the event of
a successful appeal).
The Court also shut down
Adcock’s argument that MYBUCOD was too small to matter: registration alone
gives substantive rights, whether or not the brand is a market champion.
Why it matters
(Afro-Buff’s take)
This case is a reminder
that:
1. Registered rights
are muscle, not fluff. You don’t need market bulk to enforce them.
2. Section 18(3) works,
like a fast track protein shake keeping your rights strong while opponents try
to run down the clock with appeals.
For brand rights owners,
the message is clear: when an infringer tries to out-lift you by flooding the
market during appeal delays, the law gives you the tools to keep your rights
flexed and functional. Another reason to protect those trade marks by
registering them!
Order: Aspen’s
May 2025 interdict stays in force. Adcock pays costs (including two counsel).
