In the high court of south africa (eastern cape, grahamstown) case no: 2024/2010 Heard on: 2 December 2010 Delivered on: 15 December 2011



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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN) CASE NO: 2024/2010
Heard on: 2 December 2010

Delivered on: 15 December 2011
In the matter between:
ROYAL SALT COMPANY (PTY) LTD APPLICANT
vs
SWARTKOPS SEA SALT (PTY) LTD FIRST RESPONDENT

THE REGISTRAR OF TRADE MARKS SECOND RESPONDENT

JUDGMENT

MAKAULA J:
A. Introduction:
[1] In this application the applicant seeks orders interdicting the first respondent (the respondent) from infringing its trademark and passing off its product as that of the applicant. It also seeks an order rectifying the register of trademarks by removing a trademark registration belonging to the respondent.
[2] The applicant and first respondent are competitors in the manufacturing of salt.
B. Orders sought:
[3] The applicant seeks the following orders:
3.1 Dispensing with the forms, time periods and manner of service provided for in the Rules of court and granting leave for the application to be heard as a matter of urgency;
3.2 Interdicting and restraining the first respondent from infringing the applicant’s rights acquired by South African trade mark registration no. 1975/00442 SEEPO in class 30 by using the trade mark SEESO (“the offending trade mark”) or any other mark which so nearly resembles the applicant’s trade mark as to be likely to deceive or cause confusion in terms of Section 34 (1) (a) of the Trade Marks Act No. 194 of 1993 (“the Act”);
3.3 Interdicting and restraining the first respondent, by themselves or through their employees or agents, from passing off its SEESO salt product as that of the applicant or as being connected in the course of trade with the applicant by marketing, selling or offering for sale salt in a container bearing the offending trade mark or any other label or get-up so similar to the applicant’s label or get-up as to be likely to deceive or cause confusion;
3.4 Directing the first respondent to remove the offending trade mark from all goods, labels, containers, packaging, advertising matter and other material of whatever sort, alternatively, where the offending mark is inseparable or incapable of being removed from the above mentioned material, directing the first respondent to deliver up for destruction all such material to the applicant;
3.5 Directing that an enquiry be held for the purpose of determining the amount of any damages or reasonable royalty to which the applicant is entitled as a result of the first respondent’s unlawful conduct in terms of Section 34 (3) (b) or (c) of the Act and prescribing such procedures for conducting such enquiry as this Honourable Court may deem fit within the provisions of Section 34 (3) of the Act;
3.6 Removing from the Register of Trade Marks in terms of Section 24 (1) of the Trade Marks Act, trade mark registration no 1985/08006 MARINA SEESO, on the basis that it was an entry wrongly made and/or is an entry wrongly remaining on the Register;
3.7 Removing from the Register of Trade Marks in terms of Section 27 (1) (b) of the Trade Marks Act, trade mark registration no 1985/08006 MARINA SEESO on the basis that, up to a date 3 months before the date of this application for removal, a continuous period of 5 years or longer has elapsed from the date of the issue of the certificate of the registration, during which the trade mark was registered and during which there was no bona fide use therefore in relation to the goods by the proprietor thereof or any person permitted to use it;
3.8 Granting the applicant further and/or alternative relief;
3.9 Directing the first respondent to pay the applicant’s costs of suit (no order for costs is sought against the second respondent except if it opposes the application).
[4] The application is opposed by the first respondent only.



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