AMKA Products (Pty) Ltd v AMKA Family Projects (Pty) Ltd and Another (CT02261ADJ2025) [2025] COMPTRI 11 (28 August 2025)

Key Facts

Issues

• Whether the First Respondent's name is likely to mislead or deceive members of the public, in contravention of section 11(2)(c)(i) of the Act.
• Whether the First Respondent's registered company name is the same as, or confusingly similar to, the Applicant's registered trademark 'AMKA' within the meaning of section 11(2)(a)(iii) of the Act.
• Whether the First Respondent's name falsely implies or suggests, or would reasonably mislead a person to misbelieve, that the company is part of, or associated with, the Applicant's group of companies as contemplated in section 11(2)(b)(iii) of the Act.

Holdings

• If the First Respondent fails to comply within 30 days, the Second Respondent (Companies and Intellectual Property Commission) is directed to change the First Respondent's name to its registration number 2024/208510/07.
• The First Respondent is ordered to change its name to one that does not incorporate the word 'AMKA' as it violates Sections 11(2)(b)(iii) and (c)(i) of the 2008 Companies Act. The name change must be filed within 30 calendar days of receiving this order.
• The Second Respondent is instructed to implement measures to minimize violations of Section 11 in company registrations, ensuring future compliance with naming criteria.

Remedies

• The Second Respondent is directed to put measures in place to ensure that theviolation of S 11 in the company registrations is minimised
• There is no order of costs
• The First Respondent must file a notice of amendment of its Memorandum of Incorporation within 30 (calendar) days of receipt of this order
• In the event the First Respondent does not comply with this order within 30 calendar days of the order having been granted, the Second Respondent is directed to change the First Respondent's name to its registration number 2024/208510/07
• The First Respondent is ordered to change its name to one which does not incorporate the word AMKA as it is in contravention of Sections 11(2)(b)(iii) and (c)(i) of the Act

Legal Principles

• Section 11(2)(a)(iii) of the 2008 Companies Act prohibits company names that are the same as or confusingly similar to a registered trade mark. The test for similarity considers the overall impression on the ordinary consumer, including visual, aural, and conceptual elements. The principle of 'imperfect recollection' holds that consumers may not compare marks side-by-side and could be confused by slight differences. The standard requires proving a reasonable likelihood of confusion or deception, not actual harm to every customer.
• The National Brands v Cape Cookies case established that similarity assessments depend on the value judgment of the ordinary consumer's likely perception. The dominant feature of a name must be considered, as seen in Polyoak Packaging cases, where identical dominant features to a trade mark create substantial confusion.
• The Capital Estate v Holiday Inns case clarified that the test for confusion is whether a substantial number of consumers may be misled, not requiring proof of actual confusion among all customers. This aligns with the Companies Tribunal's approach to balancing trademark rights and free speech.

Precedent Name

• Bata Ltd v Face Fashions CC
• Compass Publishing BV v Compass Logistics Ltd
• Plascon-Evans Paints v Van Riebeck Paints Pty Ltd
• Capital Estate and General Agencies (Pty) Ltd v Holiday Inns Inc
• Amalgamated Beverage Industries Ltd v Consolidated Beverages Ltd
• Century City Apartments Property Services CC & Another v Century City Property Owners' Association
• Laugh It Off Promotions Cc V Sab International (Finance) Bv T/A Sabmark International (Freedom of Expression Institute as Amicus Curiae)
• National Brands Limited v Cape Cookies CC and Another

Cited Statute

Judge Name

Passage Text

• 36.1 change its name to one which does not incorporate the word AMKA as it is in contravention of Sections 11(2)(b)(iii) and (c)(i) of the Act; and to
• 20. Therefore, the key question is whether a reasonable person, who need not be prudent according to Link Estates (Pty) Ltd v Rink Estates (Pty) Ltd, is likely to be deceived into believing that the two entities are linked.
• 18. "Similar" means the name in question has "a marked resemblance or likeness" to that of the Applicant. The offending name should immediately evoke the well-known trademark or name.