Case Comments: Geographical Names: Has Century City Changed the Landscape? Century City Apartments Property Services CC v Century City Property Owners’ Association

• Jurisdiction: South Africa
• Author: Roshana Kelbrick
• Pages: 513-520
• Date: 25 May 2019
• Published date: 25 May 2019

Geographical Names: Has Century City Changed

the Landscape? Century City Apartments

Property Services CC v Century City Property

Owners’Association

ROSHANA KELBRICK

University of South Africa

The traditional, and still usual, approach to trade-mark litigation, in South

Africa and the United Kingdom, has been based on precedent — allege

infringement, f‌ind a similar decision, quote copiously from it, and then decide

whether the facts of that decision are sufficientlysimilar to those of the case in

hand to justify an order. In South Africa, United Kingdom decisions were

frequently referred to as authority, as South African legislation was based on

British counterparts, despite the fact that substantial differences have

developed over time (CE Webster & GE Morley Webster and Page South

African Law of Trade Marks 4 ed (looseleaf service issue 14) 1–4).

The most recent legislation in these two countries and in the European

Union calls for a different approach. As the European Directive (First Council

Directive of 21 December 1988 to Approximate the Laws of Member States

Relating to Trade Marks (89/104/EEC) (now replaced by Directive

2008/95/EC of the European Parliament and of the Council of 22 October

2008)) was meant to harmonize trade-mark legislation, and because South

Africa and the United Kingdom enacted similar provisions, it is no longer

sufficient merely to refer to South African and allegedly equivalent United

Kingdom precedents.

In South Africa, this has resulted in a broader and more comparative

approach to trade-mark issues. It is no longer sufficient to quote a locus

classicus and then to indicate whether it should be followed or distinguished.

Now, an overview of decisions in a number of jurisdictions and some analysis

of the rationale for the enactment of the relevant statutory provision has

become more common. Harms DP is the foremost proponent of this new

approach, which has made trade-mark decisions more interesting but, equally,

more challenging.

A recent decision, Century City Apartments Property Services CC and

Another v Century City Property Owners’ Association 2010 (3) SA 1 (SCA)

(‘Century City appeal’) illustrates this approach. The judgment deals with a

number of issues, but what is most interesting is the comparative approach to

a rather standard trade-mark issue – geographical names. Rather than rely on

past decisions from the United Kingdom and commonwealth countries, the

court examined recent European case law before it made its f‌indings.

513

(2011) 23 SA Merc LJ 513

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