Automated Summary
Key Facts
WALMART APOLLO, LLC (Applicant) sought to compel WELMARK DISTRIBUTORS (First Respondent) to change its name due to alleged trademark infringement under the Companies Act and Trade Marks Act. The Applicant, a U.S.-based company with extensive use of 'WALMART' trademarks in South Africa, argued aural/visual similarity between 'WALMART' and 'WELMARK' could cause consumer confusion. Service attempts on the First Respondent failed, leading to a default judgment application. The Tribunal dismissed the application, concluding the names are not confusingly similar and no infringement occurred.
Issues
- The Tribunal assessed whether the First Respondent's name 'WELMARK DISTRIBUTORS' is confusingly similar to Walmart's registered trademarks, potentially violating sections 11(2)(a) and (b) of the Companies Act. They concluded the names are distinct in spelling and pronunciation, with no infringement found.
- The Tribunal evaluated if the First Respondent's name infringes on Walmart's trademarks under sections 34(1)(b), 34(1)(c), and 35(3) of the Trade Marks Act. They determined no aural or visual similarity exists to cause consumer confusion, rejecting the infringement claim.
Holdings
- No order as to costs is made in this matter.
- The application is dismissed as the First Respondent's name does not infringe on the Applicant's trademarks and is consistent with the Companies Act. The Tribunal found no aural or visual similarity between 'WALMART' and 'WELMARK' sufficient to cause confusion, and concluded the First Respondent's name does not falsely imply association with the Applicant.
Remedies
- The application is dismissed.
- No order as to costs.
Legal Principles
- Section 11(2)(a) and (b) of the Companies Act were considered, requiring company names to not be the same or confusingly similar to existing names or trademarks. The Tribunal found the First Respondent's name not confusingly similar to WALMART trademarks.
- The Tribunal applied section 160(1) of the Companies Act, which empowers it to assess whether a company's name complies with the Act. It emphasized that an application must demonstrate good cause to proceed, referencing the court's guidance in Highly Nutritious Food Company v Companies Tribunal.
- The Tribunal referenced trademark law principles under section 34(1)(b) and (c) of the Trade Marks Act, assessing whether the First Respondent's name caused confusion or diluted the Applicant's brand. It concluded no infringement occurred due to clear visual/aural distinction.
Precedent Name
- American Chewing Products Corporation v American Chicklee Corporation
- Hollywood Curl (Pty) Limited v Twins Products (Pty) Limited
- Cowbell AG v ICS Holdings
- Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd
- Highly Nutritious Food Company (Pty) Ltd v Companies Tribunal and Others
- Deutsche Babcock SA (Pty) Limited v Babcock Africa (Pty) Limited
- Polaris Capital (Pty) Ltd v The Registrar of Companies and Polaris Capital Management Inc
- Ewing t/a The Buttercup Dairy Co. v Buttercup Margarine Co-operation Limited
Cited Statute
- Trade Marks Act 194 of 1993
- Companies Act
Judge Name
Prof. Marumoagae
Passage Text
- Allowing the First Respondent to keep the word 'WELMARK' in its company name will neither create any confusion nor impede the Commissioner of the Second Respondent from maintaining and promoting good governance and administration of a corporate entity in the interest of the general public. I find that the First Respondent's name is not inconsistent with the provisions of the Companies Act and its Regulations.
- With a sense of global appreciation, visually and aurally, the words "WALMART" and "WELMART" are not confusingly similar. No relationship or association can be concluded by visual or aural assessment of the two words because they are also pronounced differently. There is no merit to the Applicant's argument that the word WELMART offends against sections 11(2)(a), (b) & (c) of the Companies Act.