Case Notes: The Classification of a Trade Mark as Property: Pointer Fashion International CC v Adams & Adams Attorneys & Others 2013 BIP 180 (GNP)

• Jurisdiction: South Africa
• Citation: (2016) 28 SA Merc JL 563
• Published date: 04 September 2019
• Author: Alastair Smith
• Date: 04 September 2019
• Pages: 563-575

Case Notes

THE CLASSIFICATION OF A TRADE MARK

AS PROPERTY: POINTER FASHION

INTERNATIONAL CC v ADAMS & ADAMS

ATTORNEYS & OTHERS 2013 BIP 180 (GNP)

ALASTAIR SMITH*

Professor, Department of Mercantile Law, University of South Africa

I INTRODUCTION

In the context of civil procedure and intellectual property law, Pointer

Fashion International CC v Adams & Adams Attorneys & others 2013 BIP

180 (GNP) (‘Pointer’) raises questions of classifying trade marks and

thus intellectual property. After a summary of the facts and some of the

reasons for judgment in Pointer, the further stage of the proceedings on

appeal is mentioned and then comments are made in relation to Futura

Footwear Ltd v Salomon SAS 2012 BIP 169 (KZD) (‘Futura’) and other

aspects of the relevant law. The classif‌ication to be considered is whether

trade marks as incorporeal property are immovable property or mov-

able property. The courts in the Pointer and the Futura cases reached

different conclusions regarding the classif‌ication of trade marks. As the

reasoning of these two courts shows, different legal provisions in other

areas of the law may be applicable, depending on whether the property

in question is classif‌ied as immovable or movable.

In Pointer the applicant, Pointer Fashion International CC

(‘Pointer’), formerly owned f‌ive registered trade marks. The f‌irst

respondent, Adams & Adams Attorneys (‘Adams’), obtained a costs

order against Pointer in the Pretoria magistrate’s court on 1 July 2005

and default judgment with costs on 16 October 2006. Adams could not

levy execution on Pointer’s corporeal movable or immovable property.

So Adams applied to attach Pointer’s trade marks under section 41 of the

Trade Marks Act 194 of 1993 (‘TMA’), following regulation 41 (actually,

*I thank Professors Coenraad Visser and Roshana Kelbrick for commenting on a draft of

this case comment. Any remaining errors are mine.

563

(2016) 28 SA Merc LJ 563

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