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 |
Citation | (2011) 23 SA Merc LJ 513 |
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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