Jaymia CC v Kemptek (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Tuwe, AN
• Court: Registrar of Trade Marks
• Citation: 2015 JDR 2398 (TRM)
• Docket Number: 1997/16120

Tuwe AN:

Kemtek (Pty) Ltd, a company incorporated and existing under the company laws of Botswana, and having its principal place of business at Plot No.1, New Industrial Site,

2015 JDR 2398 p2

Tuwe AN

Shashe, Botswana, is the proprietor of trade mark registration number 1997/16120 VITA CARE in class 3 in respect of, "Cosmetics and toilet products including preparations of all kinds for the care of the hair and skin, soaps, perfumery, essential oils, dentrifices". (hereinafter referred to as "the Respondent).

The Applicant in this matter is Jaymia CC, a South African close corporation of Shop 15, Riverside Centre, Main Road, Rondebosch, South Africa (herein referred to as "the Applicant"). The Applicant is also the applicant for the registration of trade mark number 2003/20182 VITACARE PHARMACY & SKINCARE CLINIC in class 35 in respect of, "Sale of pharmaceutical & cosmetic allied products, rendering pharmaceutical advice, skincare clinic, nursing clinic and general pharmaceutical services".

The Applicant brought an application for expungement of the Respondent's trade mark registration in terms of section 27(1)(b) of the Trade Marks Act, Act 194 of 1993 ("the Act") on the ground of non-use.

Section 27. Removal from register on ground of non-use

(1)

Subject to the provision of section 70 (2), a registered trade mark may, on application to the court, or, at the option of the applicant and subject to the provisions of section 59 and in the prescribed manner, to the Registrar by any interested person, be removed from the register in respect of any goods or services in respect of which it is registered, on the grounds of either-

(b)

that up to the date three months before the date of the application, a

2015 JDR 2398 p3

Tuwe AN

a continuous period of five years or longer has elapsed from the date of issue of the certificate of registration during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods or services by any proprietor thereof or any person permitted to use the trade mark as contemplated in section 38 during the period concerned

Mr Chicktay, the deponent to the Applicant's founding affidavit is the manager of the Applicant. He testified that it was only after the Applicant's trade mark application no. 2003/20182 was published for opposition purpose, and a letter was received from the Respondent's attorneys, that he became aware of the existence of Kemtek...