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[2017] ZALAC 21
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Independent Municipal and Allied Trade Union (IMATU) v Municipal and Allied Trade Union of South Africa (MATUSA) and Others (CA20/2015) [2017] ZALAC 21; (2017) 38 ILJ 1283 (LAC) (22 March 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: CA 20/2015
In the matter between:
INDEPENDENT
MUNICIPAL AND ALLIED TRADE UNION
Appellant
(IMATU)
and
MUNICIPAL AND ALLIED TRADE UNION OF
SOUTH
AFRICA
(MATUSA)
First Respondent
CROUSE N.O.
REGISTRAR OF LABOUR
RELATIONS
Second Respondent
Heard:
10
November 2016
Delivered:
22 March 2017
Summary: MATUSA appealed the
decision of the Registrar of Labour Relations, to register it as a
trade union in terms of section
95 and 96 of LRA. IMATU was joined as
a respondent in the appeal before the Labour Court on the basis of
its interest in a determination
as to whether the name offended the
provisions of s 95(4). The Labour Court upheld the appeal, set aside
the second respondent’s
refusal and ordered the registration of
MATUSA by the Registrar within 14 days. On appeal to this Court,
decision of Labour Court
upheld. Appeal dismissed with costs.
Coram: Coppin JA, Savage
et
Phatshoane AJJA
Judgment
SAVAGE AJA
Introduction
[1]
This
appeal concerns the decision taken by the Registrar of Labour
Relations on 25 March 2015 to refuse an application by the Municipal
and Allied Trade Union of South Africa (MATUSA) for registration as a
trade union in terms of sections 95 and 96 of the Labour
Relations
Act 66 of 1995 (the LRA) on the grounds that it had not satisfied the
requirements of the LRA and was not a genuine trade
union.
[2]
In
terms of s 111(3), MATUSA appealed the Registrar’s refusal to
register it to the Labour Court. The Independent Municipal
and Allied
Trade Union (IMATU) was joined as a respondent in that appeal, having
objected to MATUSA’s registration on the
basis of its close
similarities with IMATU’s names. The Labour Court (Steenkamp J)
found MATUSA to be a genuine trade union,
set aside the Registrar’s
decision to refuse registration and ordered that MATUSA be registered
within 14 days. IMATU now
appeals against that judgment.
[3]
At
the outset of the hearing of this appeal and with no opposition
raised, condonation was granted for the late filing, by three
days,
of the notice of appeal on the basis that the appellant had been
unaware that leave to appeal had been granted.
Background
[4]
IMATU
was established on 8 March 1996 as a successor to trade unions active
primarily in the local government sector, some of which
had existed
since the early part of the previous century. It operates with a
membership of approximately 79 500 employees
throughout South
Africa to protect the rights of workers in the local government
sector. Other registered trade unions in the same
sector currently
include the South African Municipal Workers Union (SAMWU), the
National Associated Municipal Trade Union (NAMTU),
registered on 23
January 2012, and the Democratic Municipal and Allied Workers Union
of South Africa (DEMAWUSA), registered on
22 January 2016.
[5]
MATUSA
was launched by disenchanted members of SAMWU in the Western Cape and
applied to be registered as a trade union in January
2015. The
Registrar gave MATUSA 30 days to meet the requirements for
registration after its application was found to fall short
of the
requirements of the LRA. The Registrar also held that its name “
has
elements that resembles that of other trade union
(sic)
and
as such is not acceptable”.
On
10 February 2015, IMATU lodged an objection to MATUSA’s name
with the Registrar on the grounds that it possessed close
similarities to IMATU’s name.
[6]
MATUSA
responded to certain of the issues raised by the Registrar concerning
its application for registration but did not undertake
to change its
name. On 25 March 2015, the Registrar refused MATUSA’s
application for registration stating that:
‘…
The
application was perused and found not acceptable for approval.
You
are accordingly advised that the applicant is not a genuine trade
union as envisaged by the
[Labour
Relations]
Act
and was established by individuals for their own personal benefit.
The applicant failed to satisfy registration requirements
of the
Act.’
[7]
Aggrieved
by the Registrar’s decision, MATUSA appealed to the Labour
Court as contemplated in section 111(3) of the LRA.
Applicable statutory provisions
[8]
Section
95(1) of the LRA permits any trade union to apply to the Registrar –
‘…
for
registration if-
(a)
it has adopted a name that meets
the requirements of subsection (4);
(b)
it has adopted a constitution
that meets the requirements of subsections (5) and (6);
(c)
it has an address in the
Republic; and
(d)
it is independent
.’
[9]
In
terms of s95(4):
‘
Any
trade union or employers' organisation that intends to register may
not have a name or shortened form of the name that so closely
resembles the name or shortened form of the name of another trade
union or employers' organisation that it is likely to mislead
or
cause confusion.
’
[10]
Section
111(1) permits “
any
person”
aggrieved by the decision of the Registrar to request reasons for the
decision within 30 days of the Registrar’s written
notice of a
decision. And, in terms of s 111(3) –
‘…
(3)
Any person who is aggrieved by a decision of the registrar may appeal
to the Labour Court against that decision,
within 60 days of
(a)
the date of the registrar’s
decision; or
(b)
if written reasons for the
decision are demanded, the date of those reasons.
’
Judgment of Labour Court
[11]
The
Labour Court having considered the appeal under s111(3) found that
the
onus
was on IMATU to show why MATUSA’s name may lead to confusion.
It found further that it was “
most
unlikely”
that
the acronym MATUSA would be confused with the acronym IMATU given the
distinct pronunciation of the names and when IMATU and
SAMWU, as the
two established unions in the sector, had enjoyed collective
bargaining rights for many years. The long form names
of MATUSA and
IMATU were also found to be distinguishable by the prefix
“Independent” in IMATU’s name, an important
signifier of it being independent of any affiliation; the descriptive
words “municipal” and “trade union”;
and the
generic words “Allied Trade Union of South Africa”, as
also appearing in the names of many other trade unions.
The Court
noted that the names of 51 trade unions in South Africa contain the
word “allied”, 43 “allied workers”;
59 “South
Africa” or “South African”, 130 “union”,
59 “workers’ union” and
only two the word
“independent”, of which IMATU is one and the appellant is
not the other. The Court also had regard
to the fact that the logos
of the two unions were entirely different.
[12]
The
Court concluded that there was no similarity or likelihood of
confusion between the two unions, that MATUSA was a genuine trade
union and that neither its name nor the acronym of its name, would
mislead or cause confusion when compared to that of IMATU. MATUSA’s
appeal was accordingly upheld. It was found to be a genuine trade
union. The Registrar’s decision refusing to register it
was set
aside, and the Registrar was ordered to register MATUSA as a trade
union within 14 days of the Labour Court’s order.
Issues on appeal
[13]
IMATU
appeals against that part of the judgment and order of the Labour
Court which deals with whether MATUSA’s long form
name and the
acronym of its name so closely resembles IMATU’s long form name
and the acronym of its name that it is reasonably
likely to mislead
or cause confusion as contemplated by section 95(4).
[14]
In
doing so IMATU relies on its substantial reputation as a trade union
within the local government sector and among the broader
public,
which knows it by its long name and the acronym of its name; the fact
that four of the five words in MATUSA’s name,
being “
Municipal
and Allied Trade Union”
are identical to four of the words in IMATU’s name; that the
last four letters in IMATU’s acronym, “
MATU
”,
are duplicated in four letters of the acronym “
MATUSA
”;
and that the name MATUSA will, therefore, mislead or cause confusion.
It is disputed on behalf of IMATU that the words
“
Allied
Trade Union of South Africa”
are
generic or that the word “
municipal”
is
merely descriptive.
[1]
IMATU also takes issue with the name’s dominant message being
to identify a “
Municipal
and Allied Trade Union”
.
And contending that “
Independent”
was not a signifier peculiar to IMATU’s name, given that s
95(1)(d) requires a trade union to be “independent”
as
intended by section 95(2).
[15]
In
opposing the appeal, MATUSA contends that the names MATUSA and IMATU,
in both long and short form, look and sound sufficiently
different
with the result that there exists no reasonable room for confusion
between them. It contends that the words used in MATUSA’s
name
are not an overly broad description, nor are they misleading or
likely to confuse; and there is no reasonable likelihood that
the
acronym MATUSA may be confused with IMATU. Since IMATU and the SAMWU
have retained dominance as the two established unions
in the local
government sector for decades, with an agency shop agreement for
their benefit in place across the sector, their names
are distinctive
according to counsel for MATUSA.
[16]
According
to MTUSA’s counsel, the addition of the suffix of “SA”
to “MATU” as opposed to IMATU’s
“TU”,
distinguishes MATUSA from IMATU; and although common denominators
exist in their long form names, there is no
evidence of any confusion
having arisen. This, it is submitted, distinguishes the matter from
the decision of this Court in
Staff
Association for the Motor & Related Industries.
[2]
In any event, to the extent that there may be found to be confusion
between the names MATUSA and IMATU, MATUSA tendered its willingness
to be registered under a different name.
Evaluation
[17]
An
appeal in terms of s111(3) may be brought by
any
person”
,
including an interested trade union.
[3]
Such an appeal is one in the wide sense of a complete rehearing and
adjudication on the merits with, or without, additional evidence
or
information.
[4]
On the basis that the Registrar has no discretion to refuse a trade
union’s application for registration where the requirements
of
s95(1)(a) to (d) have been met,
[5]
t
he
determination of the matter is ultimately a value judgment
[6]
to be determined on the undisputed facts as a question of law.
[7]
As
was cautioned in
Motor
Industries,
[8]
a preoccupation
with decided authorities may obscure the fact that such matters are
to be decided on “
a
simple legal principle and that they depend upon the facts of each
particular case”
[9]
through the exercise of a wide discretion in light of all relevant
considerations.
[10]
[18]
In
determining whether the name MATUSA so closely resembles that of
IMATU so as to mislead or cause confusion
in
the manner contemplated in s95(4),
the
issues as set out by
the
court in
Motor
Industries,
with
reference to
Plascon-Evans
Paints Ltd v Van Riebeeck Paints,
[11]
are to be considered with regard to:
1.
the
names when compared side by side and separately, including their
sense, sound and appearance, their distinctive, main or dominant
components, and their similarities and differences, without peering
too closely in order to find such similarities or differences;
[12]
2.
the
impact and the overall impression created by the names on the average
person likely to encounter them, or the notional customer
of average
intelligence, having proper eyesight and adopting ordinary caution,
with due allowance for imperfect recollection and
with regard had to
the fact that names or marks are remembered by general impressions or
by some significant or striking feature
and not by a photographic
recollection of the whole;
[13]
3.
the
context in which the names would be encountered and used, considered
against the background of relevant surrounding circumstances;
and
4.
the
reasonable likelihood of a substantial number of interested people
being misled or confused by the names, whether either for
a shorter
or longer period of time,
[14]
in such a manner as induces in their minds an erroneous belief,
impression, doubt or uncertainty that the entities identified are
the
same entity or are connected with one another,
[15]
with the reputation attached to an established name being a relevant
consideration.
[16]
This requires that if both names “
are
to be used together in a normal and fair manner, in the ordinary
course of business’
[17]
a value judgment be made “
dictated
by the overall impression created by the marks, given their
respective characteristics, and the circumstances in which
they are
likely to be encountered, instead of being drawn into excessive
analysis
”.
[18]
[19]
This
Court in
Motor
Industries
[19]
noted that:
‘
While
in certain cases the dominant feature of each mark may be the
determining factor, the true rule is a broader one, namely,
that the
comparison is to be made between the main idea or impression left on
the mind by each name, having regard to any essential
or salient or
leading or striking feature or features in each. (International Power
Marketing v Searles Industrial, supra, at 168
H.) When the court is
called upon to consider resemblance between the two names, it must be
mindful of the fact that the advantages
which it has after
considering arguments from Counsel and the ample time for full
consideration, comparison of the two names carry
their own dangers.
These advantages may cause the court to look at the names with
greater care than they would be looked at by
those whose probable
reactions the court is required to assess and with far keener
awareness of similarities and dissimilarities
than such people would
probably have as they go about their daily lives. See Laboratoire
Lechartre SA v Armour-Dial Incorporated,
1976
(2) SA 744
(T)
at 746B - H.’
[20]
In
c
omparing
the two names, both side by side and separately, it is apparent that
in their long form four of the five words used in
IMATU’s long
form name, being “
Municipal
and Allied Trade Union
”,
appear in MATUSA’s name, with a similar repetition occurring in
their respective acronyms.
However,
when regard is had to the sense, sound and appearance, distinctive
and dominant components, similarities and differences
between the
names it is apparent that
there exist strong distinguishing features between the names,
particularly, in the use of the word “Independent”, as
a
prefix to IMATU’s name and the words
“South
Africa”, as a suffix
to
MATUSA’s.
The result is that the sense, sound and appearance of the two names
is made distinct in spite of the common words
used.
This
is more so when the dominant impression created by the word
“independent”, in the prefix to IMATU’s name,
is
that of an independent trade union in the sector.
[21]
It
is, in any event, of relevance to take cognisance of the fact that
there are bound to be similarities between the names of
IMATU and MATUSA since they are both organising in the same sector,
with t
he
use of the words “municipal”, “trade union”,
“allied” and South Africa” being not only
descriptive but words that are commonly used in the names of a number
of other trade unions across distinct employment sectors.
[22]
In my
view, the impact and the overall impression created by the names are
not such that there exists a reasonable likelihood of
a substantial
number of interested people being misled or confused by the names.
This is all the more so given IMATU’s extensive
and wide
reputation and its established name in the sector. It is of further
relevance that acronyms are commonly used to describe
trade unions in
South Africa, including in the local government sector. The result is
that IMATU is commonly known and referred
to by its acronym by those
people operating within the sector and more broadly by members of the
public. That acronym, I am satisfied,
is so dissimilar from that of
MATUSA that no reasonable likelihood of confusion is created between
the unions on this basis.
[23]
I
am not persuaded that the dominant features or ideas conveyed by each
name turns on the use of the four words “municipal
and allied
trade union” in that the impression of a trade union which
operates in the municipal sector is not, in my view,
sufficient to
cause confusion between the names. This is so given that other unions
operate in the same sector with names which
also include the words
“municipal”, “union” and, the case of SAMWU,
the words “South African”.
The result is that SAMWU
shares the words “municipal” “union” and
“South African” with MATUSA
yet, it is noteworthy, has
not objected to the registration of MATUSA.
[24]
The
dissimilar acronyms used by the IMATU and MATUSA, in an environment
in which acronyms are commonly used as opposed to long form
names, do
not allow for a reasonable likelihood of confusion and t
he
visual appearance of the names does not create confusion given the
use of the prefix “Independent” and their different
acronyms. With due allowance for imperfect recollection, the
probabilities support a conclusion that what is likely to remain in
the mind of an average person are the words “Independent”
and “IMATU”, compared with “Municipal”,
“South Africa” and “MATUSA”. The difference
between them would strike the average person and the similarities
between four words in their names do not permit a conclusion that
there exists a reasonable opportunity to cause confusion. Unlike
in
Motor
Industries
in which it was found that confusion arose regarding the name of a
staff association for the motor industry, the same confusion
does not
arise in this matter.
[25]
In
the same manner as with a r
egistered
trademark, the registration of IMATU as a trade union does not create
a monopoly in respect of the use of the words “municipal”,
“allied” or “trade union” as concepts or
ideas, even when used together.
[20]
Having regard to the likelihood of confusion “
appreciated
globally”
[21]
the Labour Court cannot be faulted for its finding that the
provisions of s95(4) did not create a bar to MATUSA’s
registration
as a trade union.
MATUSA’s
name
does
not so closely resemble IMATU’s name, both in long and short
form, that it is likely to mislead or cause confusion.
[26]
For
these reasons, the appeal falls to be dismissed. There is no reason
in law or fairness as to why costs should not follow the
result.
Order
[27]
In
the result, the following order is made:
1.
The appeal is dismissed with costs.
______________________
SAVAGE AJA
Coppin JA and Phatshoane AJA agree.
APPEARANCES:
FOR APPELLANT:
Mr Barrie SC
Instructed by Savage Jooste &
Adams
FOR FIRST RESPONDENT:
Mr Oosthuizen SC
Instructed by
Hannes Pretorius Bock & Bryant Attorneys
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 614A-B.
[2]
Staff
Association for the Motor and Related Industries v Motor Industries
Staff Association and Another
(
Motor
Industries
)
(1999) 20 ILJ 2552 (LAC) at para 26.
[3]
Motor
Industries (supra)
a
t
para 11 and 13.
[4]
Motor
Industries
(
supra
)
a
t
para 26.
[5]
Motor
Industries (supra)
at
paras 43 and 44.
[6]
Cowbell AG v
ICS Holdings Ltd
2001
(3) SA 941
(SCA) at para 10;
Orange
Brand Service v Account Works Software
[2013] ZASCA 158
at
[14
];
Motor Industries (supra)
at para 28.
[7]
Motor
Industries (supra)
at
para 28; See also
Orange
Brand Services v Account Works Software
[2013] ZASCA 158
at para 13;
Media
Workers’ Association of SA and Others v Press Corporation of
SA
(
Perskor)
1992
(4) SA 791 (A)
[8]
Op cit
.
[9]
At para 38.
Orange
Brand Service v Account Works Software
(supra)
at para 10.
[10]
Tjospomi
Boerdery (Pty) Ltd v Drakensberg Bottliers (Pty) Ltd and Another
1089 (4) SA 31
(T).
[11]
At 640G - 641E.
[12]
Cowbell AG v
ICS Holdings Ltd
2001
(3) SA 941
(SCA) at para 10;
Adidas
AG and Another v Pepkor Retail Ltd
[2013] ZASCA 3
at paras 21 and 22.
[13]
Plascon-Evans
(supra)
at
641C-D.
[14]
John Craig
(Pty) Ltd v Dupa Clothing Industries (Pty) Ltd
1977 (3) SA 144
(T) at 151C – D;
Adidas
AG and Another v Pepkor Retail Ltd
[2013] ZASCA 3
at
[27]
;
Orange
Brand Service v Account Works Software
[2013] ZASCA 158
at
[13]
[15]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 640H – I;
John
Craig (Pty)
Ltd
v Dupa Clothing Industries (Pty) Ltd
1977 (3) SA 144
(T) at 150G - H
[16]
Adidas AG and
Another v Pepkor Retail Ltd
[2013]
ZASCA 3
at para 24.
[17]
Cowbell AG v
ICS Holdings Ltd
2001
(3) SA 941
(SCA) ([2001] 4 All SA 242)
[18]
Orange Brand
Service v Account Work Software
[2013]
ZA SCA 158
at para 14
.
[19]
Op cit.
at para 32.
[20]
Smithkline
Beecham Consumer Brands (Pty) Ltd
[1995] ZASCA 26
;
1995
(2) SA 903
(A) at 910B.
[21]
Sabel BV v Puma
AG, Rudolf Dassler Sport
[1998]
RPC 199
(ECJ) at 224.