Why Register a Trade Mark?

Why Register a Trademark?

By: Anrich van Stryp – Brits Law Inc.

Published Wednesday, 4 September 2024

Importance Of Company Name Registrations Prohibition On “Trading As” Companies And The Duty To Register Names.

Consumer Protection Act

Since its inception the Consumer Protection Act 68 of 2008 (Hereinafter as Consumer Protection Act) has created an abundance of rules and regulations specifically aimed at aiding and protecting the consumer. The Consumer Protection Act however goes much further by protecting consumers from fraudulent business practices, defective products and dangerous goods and services. Protection against defective or dangerous goods and services is, on face value at least, quite self-explanatory. But what exactly is meant by fraudulent business practices? Fraudulent business practices can include acts such as a representation, omission, or practice that misleads or is likely to mislead the consumer.

This becomes clear as you start perusing the Consumer Protection Act and it sets up extensive administrative structures with an abundance of provisions dealing with the obligations of businesses. One of the said obligations is the way a company or business provides services and is specifically allowed to only conduct such business practices under specified or compulsory names.

Section 79(1) of the Consumer Protection Act provides a number of specifications and scenarios in which a name may be used or registered. Section 79 (1) states that a, “person will no longer be allowed by law to trade in business, advertise their services, promote, sell or supply goods and services or enter into agreements or business transactions with a consumer under any name unless, the person’s full name as recorded in an identity document or the business’ registered name”. The second requirement is that a, “business name registered to, and for the use of, that person in terms of section 80, or any other public regulation”.

It is important to further take note of Section 11 of the Companies Act 71 of 2008 where it sets out requirements for a company wishing to register a name with the Companies and Intellectual Property Commission. The aforementioned section sets out the requirements in summary as follows, “A name of an incorporated company, close corporation or co-operative; a pending or registered trademark belonging to a person other that the company, or well-known trademark in terms of section 35 of the Trade Marks Act 194 of 1993; or a mark, word or expression protected under the Merchandise Marks Act 17 of 1941; or a business name that falsely implies or suggests that the business is associated with or part of, inter alia, other persons or entities, the State and its related bodies, or persons or bodies with any particular educational designation”.

From the above content and common practice it would seem that name disputes can still be filed in instances where a name is the same or confusingly similar to inter alia an existing company, registered business name; or a well-known trade mark in terms of the Trade Marks Act No. 194 of 1993. This is further enforceable and it may therefore also be possible to file a name dispute in terms of the Consumer Protection Act in instances where the name suggests or falsely implies that the company is associated with another person or entity. The National Consumer Commission may issue a compliance notice that could affect the business from being discontinued to use the name in dispute.

Therefore, where a business conducts its business under another name, such name has to be registered in some other way or form. For example a registered company such as “Peter Knows Best (Pty) Ltd trading as Peter XYZ”, the “Peter XYZ” must be registered and considered for registration as the business name of “Peter Knows Best (Pty) Ltd”. By practicing in this sense, businesses can provide transparency to members of the public which is in line with the right of information envisaged by the Consumer Protection Act. It would further be prudent for business owners and even current trademark holders to register trademarks for their business names and most importantly their “trading as” names.

In Conclusion:

It is advised not to use a trading name in isolation to the rest of the business structure. The companies or business owners should register a trade mark and/ or name of the company or business that can be utilised as the company or businesses “trading as” name. There always remains a large possibility for another company, business and or natural person to register your company’s trading name in the possible manners prescribed above. Because a “trading name”, unregistered and in isolation, is not properly governed or protected. It could further bring about large implications in scenarios where another business entity claims the rights of the name and you are stuck with “passing off” allegations and legal entanglements. In essence, trade mark, register and once more trade mark your “trading as” name to avoid any penalties, fines, or legal proceedings.

Empowering Consumers: Understanding and Exercising Your Rights in South Africa

By: Johan Vermeulen – Brits Law Inc.

Published Thursday, 25 January 2024.

In the vibrant landscape of South Africa’s diverse consumer market, understanding and asserting your rights is crucial for a fair and transparent marketplace. The protection of consumer rights not only ensures a level playing field but also contributes to a healthier, more sustainable economy. Let’s look at some of the key aspects of consumer rights in South Africa, and how they can protect you.

The Consumer Protection Act (CPA)

At the forefront of consumer rights in South Africa is the Consumer Protection Act, signed in 2009. This legislation is designed to empower consumers, promote responsible business practices, and enhance consumer confidence. The CPA provides a consistent and comprehensive legislative and enforcement framework, covering various aspects related to consumer transactions and agreements. These include fair marketing practices, the right to privacy, and protection against unfair marketing and business practices.

Right to Fair and Honest Dealing

One of the most important tools for shielding customers from unsolicited marketing messages is the Consumer Consumers in South Africa have the right to fair and honest dealing in the marketplace. This includes protection against misleading advertising, false product claims, and deceptive practices. Businesses are obligated to provide accurate information about their products and services, allowing consumers to make informed decisions.

Right to Privacy

The protection of personal information is a fundamental consumer right. The CPA outlines strict guidelines for the collection, storage, and use of personal data by businesses. Consumers have the right to know how their information is being used and can opt out of direct marketing communications.

Right to Safe and Quality Goods

Consumers are entitled to products that are safe, of good quality, and fit for their intended purpose. If a product fails to meet these standards, consumers have the right to return or exchange it within a reasonable time. Manufacturers and suppliers are also held accountable for any defects or hazards associated with their products.

Right to Fair and Responsible Marketing

Businesses are required to engage in fair and responsible marketing practices. This includes avoiding false or misleading representations and refraining from unfair business practices. Consumers have the right to accurate information, and businesses should not exploit vulnerable individuals or use coercive tactics. This can also include unwanted sms’s, telephone calls, letters or ‘spam’ email.

Right to Fair and Reasonable Terms & Conditions

The CPA protects consumers from unfair contract terms. Standard form contracts must be transparent, written in plain language, and not contain terms that unreasonably favor the supplier. Any financial obligations must be clearly outlined and itemized. Consumers have the right to challenge unfair contract terms and seek redress.

Recourse and Remedies

In the event of a breach of consumer rights, individuals have various recourse options. This may include seeking a refund, replacement, or repair of a defective product. The National Consumer Commission (NCC), as well as the National Consumer Tribunal(NCT) play a crucial role in enforcing consumer protection laws, and consumers can lodge complaints with these regulatory bodies.

Understanding and exercising consumer rights in South Africa is essential for fostering a robust and equitable marketplace. The Consumer Protection Act serves as a powerful tool to empower consumers and hold businesses accountable. By being informed and assertive, consumers play a vital role in shaping a fair and responsible economy that benefits everyone. Remember, your rights as a consumer are not just privileges; they are the foundation of a balanced and ethical marketplace.