P Lorillard Co v Rembrandt Tobacco Co (Overseas) Ltd

• Jurisdiction: South Africa

P Lorillard Co v Rembrandt Tobacco Co (Overseas) Ltd
1967 (4) SA 353 (T)

1967 (4) SA p353

Citation	1967 (4) SA 353 (T)
Court	Transvaal Provincial Division
Judge	Marais J, Cillié J and Boshoff J
Heard	September 6, 1967; September 7, 1967
Judgment	September 15, 1967

Flynote : Sleutelwoorde

Trade and trade mark — Nature of — Registration of — When E precluded by the terms of sec. 140 of Act 9 of 1916 — Test — Court — Constitution of — Appeal postponed — Impossible to reconstitute original Court — Parties entitled to agree to differently constituted Court hearing matter.

Headnote : Kopnota

A trade mark is a purely territorial concept and there is, generally F speaking, nothing to prevent a person from asserting a proprietary right in a trade mark in relation to which no one else has in the same territory asserted a similar right.

In determining whether the Registrar of Trade Marks is precluded from registering a trade mark, which is identical with that registered and used in other countries by a competitor, by the terms of section 140 of Act 9 of 1916, the test is really whether the applicant has been guilty G of dishonesty or sharp practice which calls for a moral judgment.

Where an appeal from a decision of the Registrar of Trade Marks had to be postponed and it became impossible thereafter to constitute the Court as it was originally constituted,

Held, that the parties could agree to a new hearing before a differently constituted Court. H

Case Information

Appeal in terms of sec. 118 of Act 9 of 1916 from a decision of the Registrar of Trade Marks. The facts appear from the reasons for judgment.

N. S. Page, for the appellant, referred to Vitamins Ltd.'s Application, 1956 R.P.C. 1; Plantation Wood (Lancing) Ltd.'s Application, 1958 R.P.C. 400; Gaines' Animal Food Ltd.'s Application, 1958 R.P.C. 312; Brown Shoe Co.'s Application, 1959 R.P.C. 29; Gynomin Trade Mark, 1961 R.P.C. 408; Rawhide Trade Mark, 1962 R.P.C. 133;

1967 (4) SA p354

Broadway Pen Corporation and Another v Wechsler & Co., 1963 (4) SA 434; Wm. Penn Oils v Oils International (Pty.) Ltd., 1965 (3) SA 64; 1966 (1) SA 311; Chowles & Webster, S.A. Law of Trade Marks, p. 71; Nicholson's Application, 48 R.P.C. 227.

D. A. Melamet, S.C. (with him P.J. van der Walt), for the respondent, referred to Chowles & Webster, op. cit., p. 66 et seq; Slenderella case, 1959 (1) SA 519 at p. 521; the Greatermans Stores case, 1963 (2) SA 58; Hanover Star Milling Co v Metcalf, 240 U.S. 403 (1916) p. 414; Impex Electrical v Weinbaum, 44 R.P.C. 405; Notox Ltd.'s Application, B 48 R.P.C. 168; the Rawhide case, supra; Kerly, 9th ed., 92; Samuel and Others v Seedat, 1949 (3) SA 984. A

Cur adv vult.

Postea (September 15th).

Judgment

C Cillié, J.:

When this appeal was heard for the first time, it came before a Full Court consisting of the JUDGE - PRESIDENT and CLAASSENS and HILL, JJ. Shortly after the hearing started, it became evident that counsel for the appellant was basing his argument on some grounds which D were not contained in his notice of appeal. The Court thereupon decided to postpone the matter so that the appellant's grounds of appeal could be amended in the proper manner.

The appellant's legal advisers considered that the amendments would be ineffectual unless certain other proceedings before the Registrar of E Trade Marks could be brought before the Court on review and set aside. An application with this object was heard by a Court consisting of LUDORF, STEYN and COLMAN, JJ., and was dismissed. As a result the appellant's notice of appeal was not amended and the appeal was, therefore, to be heard on the same grounds as those which had existed at the first hearing.

F As the JUDGE - PRESIDENT is on long leave and outside the borders of the Republic, and CLAASSENS and HILL, JJ., are absent on duty in the Witwatersrand Local Division, it was not at present possible to have the appeal heard by the same Judges who sat and listened to some argument at the first hearing. The question arose whether the Court as presently G constituted could hear the matter even though the parties did not object and, indeed, consented to a hearing de novo in so far as it was within their competence so to consent.

It is a common occurrence in the motion Courts in this Province that argument, in an ex parte opposed case, proceeds for some time when the matter is postponed for further facts to be put before the Court, and is H then afterwards heard by a different Judge. Less frequently it happens that a criminal appeal is postponed, after some argument, for a particular point to be put before the magistrate in the court a quo for his comments, and is then heard before a Court differently constituted. Apart from the recognised practice there is scant authority for this procedure.

Instances of a change of Courts in criminal matters are to be found in cases where an assessor died or fell seriously ill before a trial was completed. Such cases as R v Price, 1955 (1) SA 219 (AD) and R. v.

1967 (4) SA p355

Boshoff J

Johnston, 1947 (4) SA 842 (C), deal with the problem which has now been solved by subsequent legislation.

On the question of a part-heard civil matter coming before another Court, the attitude of the parties appears to be of the greatest importance. As long as their agreement is not in conflict with any A statutory provision or rule of law, e.g. one relating to territorial jurisdiction, they may agree not only to a new trial or hearing before a differently constituted Court, but also, within limits, to the production of evidence at the new trial. In Samuel and Others v Seedat, 1949 (3) SA 984 (N), the facts were that a magistrate trying the case B took ill and that the case was then placed before another magistrate; the parties agreed that the evidence which had already been given should form part of the record. The Court held on appeal that this agreement did not deprive the judgment of its validity as such nor render it the mere award of an arbitrator. SELKE, J., referred in his judgment to South African and English cases and, at p. 987, states the principle that -

C '. . . in civil cases, the parties may, by consent or contract, depart to some extent from the usual procedure, more especially in the direction of relaxing the strict rules of evidence'.

To the cases quoted may now be added The Forest Lake case, (1963) 3 All. E.R. 833.

D In all the cases considered the presiding judicial officer or one of the members of the Court hearing a matter became permanently or temporarily unable to be present at the trial and by agreement the trial was conducted in a particular manner before a Court differently constituted.

For the purpose of this appeal it may be said that, as it has become relatively impossible to constitute the Court as it was constituted at E the original hearing, the parties could agree to a new hearing before a differently constituted Court.

In view of the absence of the JUDGE - PRESIDENT and the other Judges, and the agreement by the parties to a new hearing, there can be no objection to this Court hearing the appeal.

F MARAIS, J., and BOSHOFF, J., concurred.

Judgment

Boshoff, J.:

This is an appeal, brought in terms of sec. 118 of Act 9 of 1916, from the...