Automated Summary
Key Facts
The Applicant, WIRULINK (PTY) LIMITED, seeks to compel WIRUNET INTERNET SERVICE PROVIDER (PTY) LTD to change its name due to similarity with the Applicant's well-known 'WIRULINK' trademark. Both names start with 'WIRU' and operate in the same industry. The Applicant has held rights to 'WIRULINK' since 2006, while the Respondent was registered in 2023. The Tribunal found the names confusingly similar and phonetically alike, potentially misleading the public and causing reputational and financial harm to the Applicant.
Issues
The main issue was whether the First Respondent's name, WIRUNET Internet Service Provider, is confusingly similar to the Applicant's well-known WIRULINK trademark under Section 11(2)(a)(iii) of the Companies Act 2008. The Tribunal found that the names are similar in appearance and sound, leading to potential public deception and reputational damage to the Applicant.
Holdings
- In the event that the First Respondent fails to comply with the order as aforementioned, within 3 months, from the date of the order, that Companies and Intellectual Property Commission CIPC be directed to change the respondent's name to its registered company number being 2023/907992/07 as the Respondent's interim company name on the Companies register.
- This Determination must be served upon the Respondent and the Registrar of Companies and Intellectual Property Commission.
- The First Respondent is hereby exempted from the requirement to pay the prescribed fee for filing the notice of amendment contemplated in this paragraph.
- The First Respondent is to file a notice of an amendment of its Memorandum of Incorporation, within 60 days of receipt of this order in order to change its name as per above.
- The First Respondent is directed to change its name to one which does not incorporate and is not confusingly and or deceptively similar to Applicant's. It should not include the word WIRULINK and or WIRU in any form.
Remedies
- The First Respondent is exempt from paying the prescribed fee for filing the name change amendment.
- The First Respondent must change its name to exclude 'WIRULINK' or 'WIRU' to avoid confusion with the Applicant's trademark.
- If the First Respondent doesn't comply within 3 months, the CIPC will change the name to its registration number (2023/907992/07).
- The determination must be served on the First Respondent and the Registrar of Companies and Intellectual Property Commission.
- The First Respondent must file an amendment to its Memorandum of Incorporation within 60 days of receiving the order.
Legal Principles
The Companies Tribunal applied Section 11(2) of the Companies Act 71 of 2008, which prohibits company names from being the same as or confusingly similar to existing company names or trademarks. The tribunal found that the First Respondent's name 'WIRUNET' was confusingly similar to the Applicant's 'WIRULINK' trademark, thereby violating the statutory requirement to prevent misleading or deceptive names in similar industries.
Cited Statute
- Trademarks Act
- Companies Act 71 of 2008
Judge Name
Hlaleleni Kathleen Dlepu
Passage Text
- 15. Having considered the Applicant's submissions, I find in favour of the Applicant. I therefore make the following order:
- 8. The Applicant argues that the First Respondent's name is confusingly similar and phonetically similar to the Applicants, and this would deceive the public. The Applicant further alleges that the First Respondent is registered in the similar industry and has also copied information policies etc. illegally from the Applicants website and used it as their own without the Applicants permission and authority.
- 12. Section 11 (2) of the Companies Act requires me to determine whether the name of the respondent is confusingly similar and phonetically similar to that of the Applicants well known WIRULINK trademark. The names both start with the word WIRU in them. The names look similar and sound similar, and they are in the similar industry.