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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case No: CT02521ADJ2025
In the matter between:
ASSEMBLED INVESTMENTS (PTY) LTD APPLICANT
(1996/008418/07)
and
ROSEMARY (PTY) LTD FIRST RESPONDENT
(2024/667553/07)
THE REGISTRAR OF COMPANIES SECOND RESPONDENT
___________________________________________________________________
Presiding Member of the Companies Tribunal: DR MINAH TONG-MONGALO
Date of Decision: 13 February 2026
___________________________________________________________________
DECISION (Reasons and an Order)
A. INTRODUCTION AND BACKGROUND
[1] T he Applicant is the proprietor of the registered trade mark ROSE‑MARY, duly
entered on the trademarks register under Registration Number 2016/26914 in
class 33. The Applicant has, since prior to the registration of the impugned
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company name, made continuous and bona fide use of the ROSE ‑MARY
trademark in the course of trade within the Republic of South Africa. The mark
enjoys substantial goodwill and reputation in relation to the Applicant’s
products.
[2] The First Respondent was incorporated under the name ROSEMARY (PTY)
LTD on or about 3 April 2025, as appears from the disclosure certificate
issued by the Companies and Intellectual Property Commission (“CIPC”). The
Applicant became aware of the First Respondent’s registration on or about 29
October 2024. Upon becoming aware of the First Respondent’s registration,
the Applicant undertook enquiries which revealed that the First Respondent’s
name is identical or confusingly similar to the Applicant’s registered trade
mark.
[3] The Applicant thereafter caused correspondence to be addressed to the First
Respondent, placing it on notice of the Applicant’s rights and calling upon it to
take steps to amend its registered name so as to bring it into compliance with
section 11(2) of the Act. The First Respondent has not taken any steps to
effect such a change. The disputed name accordingly remains on the
companies register, but its compliance with the Act is now formally placed in
dispute through this application.
[4] The Second Respondent is cited solely in its statutory capacity as the
authority responsible for the administration and maintenance of the
companies register. No substantive relief is sought against the Second
Respondent.
[5] The Applicant seeks a determination that the First Respondent’s registered
company name, ROSEMARY (PTY) LTD, fails to comply with the
requirements of section 11(2) of the Companies Act 71 of 2008 and ought, for
that reason, to be removed from the companies register.
[6] The essence of the Applicant’s complaint is that the disputed name is
confusingly similar to, and falsely suggestive of an association with, the
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Applicant’s registered trademark ROSE ‑MARY, bearing Trade Mark
Registration Number 2016/26914 in class 33.
B. JURISDICTION
[7] This Tribunal is vested with jurisdiction to determine the present dispute by
virtue of section 160(1) of the Companies Act 71 of 2008 (‘the Act’), which
empowers any person to apply to the Tribunal for a determination regarding
whether a company name satisfies the requirements of the Act. The Applicant,
as the proprietor of the ROSE ‑MARY trade mark and a person with a
substantial legal interest in the matter, is accordingly entitled to bring this
application.
[8] In terms of section 160(2)(b), an application of this nature may be brought at
any time after the registration of the impugned name. The First Respondent’s
name remains on the companies register and its compliance with section
11(2) is now formally placed in dispute. The present application is therefore
properly brought within the statutory framework.
[9] Regulation 142 of the Companies Regulations, 2011 prescribes the
procedural requirements for initiating such an application, including the filing
of Form CTR 142 together with a supporting affidavit. The Applicant has
complied with these requirements, and all necessary documents have been
duly lodged.
[10] Accordingly, the Tribunal has both the statutory authority and the procedural
competence to adjudicate the dispute and to grant the relief contemplated in
section 160(3) of the Act.
C. APPLICABLE LAW
2008 Companies Act
[7] Section 11 (2) (a) (iii) of the Act prohibits registration of a name t hat is the
same as a registered trademark of another.
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[8] Section 11(2)(b) of the Companies Act provides that a company name must
not be confusingly similar to a name, trademark, unless the company is the
owner of the trademark.
[9] Section 11(2)(c)(i) provides that a company name must not “falsely imply or
suggest, or be such as would reasonably mislead a person to believe
incorrectly, that the company is part of, or associated with, any other person
or entity”.
[10] Section 160(3)(a) empowers the Tribunal to decide whether a name satisfies
the requirements of section 11.
[11] Section 11 of the Act outlines the criteria for names permitted to be registered
in the register of companies. Amongst others, the name in question should not
be confusingly similar to a name, trademark, mark, word or expression of a
registered trademark belonging to a person other than the company unless
such trademark owner had consented to the use of their trademark.
D. SUMMARY OF THE APPLICANT’S LEGAL SUBMISSIONS
[12] The Applicant contends that the First Respondent’s company name
ROSEMARY (PTY) LTD is unlawful, undesirable, and confusingly similar to
the Applicant’s registered ROSE ‑MARY trade mark , thereby contravening
section 11(2) of the Companies Act.
[13] The Applicant’s case rests on the following key propositions:
13.1 Infringement of Statutory and Common‑Law Trade Mark Rights
13.1.1 The Applicant is the proprietor of the ROSE ‑MARY trade mark, which enjoys
substantial reputation and goodwill.
13.1.2 The First Respondent’s use of the identical dominant element ROSEMARY
constitutes: infringement under section 34(1)(c) of the Trade Marks Act;
passing‑off at common law; and unlawful competition.
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13.2 The Applicant has not authorised or consented to such use.
13.3 Likelihood of Confusion, Deception, or Non-Existent Association
13.3.1 The visual, phonetic, and conceptual similarity between ROSEMARY and
ROSE‑MARY creates a real likelihood that members of the public will assume
an association, endorsement, or connection between the parties.
13.3.2 Even minor differences (such as the hyphen) are immaterial under the de
minimis principle.
13.3.3 The First Respondent’s use dilutes the distinctive character of the Applicant’s
trademark and unfairly exploits its reputation.
13.4 The Name is “Undesirable” Under the Companies Act
13.4.1 Under the Companies Act, a company name is undesirable where it:
13.4.1.1 infringes or encroaches upon existing rights;
13.4.1.2 resembles a registered trade mark to the extent that confusion is likely;
13.4.1.3 creates avoidable or unnecessary confusion in the minds of the public; or
13.4.1.4 misleads the public into assuming a connection, association, or
endorsement that does not exist.
13.5 The First Respondent's name falls squarely within these prohibitions.
13.6 The Authorities relied upon by the Applicant established the following settled
principles:
13.6.1 confusing similarity, on its own, is sufficient to render a company name
objectionable;
13.6.2 the dominant and memorable elements of the respective names are decisive
in the comparison;
13.6.3 the assessment must take account of the imperfect recollection of the ordinary
reasonable person;
13.6.4 names need not be identical —even non‑ identical names are unlawful where
they mislead or create a likelihood of confusion; and
13.6.5 company names that resemble registered trade marks are particularly
problematic, as they appropriate and dilute the goodwill vested in the mark.
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E. Case Law And Tribunal Decisions that Support Trade- Mark Protection in
Company Names
[14] in Laugh It Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International and Another 1 the Constitutional Court
emphasised the commercial significance of trade marks in modern society,
noting that:
“In a society driven by consumerism and material symbols, trademarks have
become important marketing and commercial tools that occupy a prominent
place in the public mind. Consequently, companies and producers of
consumer goods invest substantial sums of money to develop, publicise and
protect the distinctive nature of their trademarks ; in the process, well -known
trademarks become targets for parody.” [my emphasis]
[15] The Court’s observation underscores a central principle of trade mark law: the
distinctive character of a mark, and the substantial investment made to
cultivate and protect that distinctiveness, warrant robust legal protection. It is
precisely because trade marks function as powerful commercial identifiers —
embodying reputation, goodwill, and consumer trust — that the law intervenes
where another party adopts a confusingly similar name or mark. Such conduct
threatens the very investment and distinctiveness that the Constitutional Court
recognised as deserving of protection.
[16] The court articulated the proper analytical framework for disputes involving
trade mark rights and competing constitutional interests and held
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“The question to be asked is whether, looking at the facts as a whole, and
analysing them in their specific context, an independent observer who is
sensitive to both the free speech values of the Constitution and the property
protection objectives of trademark law, would say that the harm done by the
parody to the property interests of the trademark owner outweighs the free
speech interests involved.”
1 (CCT42/04) [2005] ZACC 7 at para 78.
2 At para 82.
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In the context of company ‑name disputes, the same balancing exercise
applies. Where a company name appropriates or mimics a registered trade
mark in a manner that causes confusion, misleads the public, or encroaches
upon the trade mark proprietor’s rights, the scale tips decisively in favour of
protecting the integrity and exclusivity of the mark. The First Respondent’s
conduct in this matter falls squarely within that category.
[17] In the Companies Tribunal’s decision Mondi South Africa (Pty) Ltd v Mondi LL
(Pty) Ltd and Another
3, the Tribunal confronted the recurring difficulty that
arises when a company incorporator or director adopts a company name that
conflicts with an existing registered trade mark. In analysing this pattern of
disputes, Prof Marumoagae observed:
“The Tribunal’s different approaches and inconsistent reasoning in disputes
relating to names that are the same as those of company incorporators or
directors is concerning. This makes it difficult for those who approach this
Tribunal to have certainty regarding the interpretation and application of the
law and the likely outcome of their cases. It does not seem like the facts of all
these cases, which involved the same Applicant raising the same complaint
against different respondents , justified different outcomes. However, without
adequate guidance from the Superior Courts regarding the current legal
position relating to companies that registered as their names the names of
their incorporators or directors, it seems like this Tribunal is likely to continue
to issue inconsistent decisions on this matter depending on who is presiding
over the matter. It is important , however, to assess whether registering a
company on one’s own name can be a defence against allegations of trade
mark infringement in South Africa.”
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[18] This commentary highlights a critical point: the mere fact that a director or
incorporator shares a personal name with a registered trade mark does not,
incorporator shares a personal name with a registered trade mark does not,
without more, confer a lawful entitlement to adopt that name as a company
name. The Tribunal’s inconsistent outcomes underscore the need for a
3 (CT01288ADJ2023) [2023] COMPTRI 62 (24 May 2023).
4 Ibid at para 37.
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principled approach grounded in trade mark law, the Companies Act, and the
protection of vested proprietary rights.
[19] In the present matter, the First Respondent’s reliance—whether explicit or
implied—on the personal name of a director cannot override the Applicant’s
prior statutory and common‑ law rights. As Prof Marumoagae notes, the
question is not whether the director bears the name, but whether the adoption
of that name in the commercial sphere infringes, dilutes, or misappropriates
the trade mark proprietor’s rights. Where, as here, the name is identical or
confusingly similar to a registered trade mark, the defence of personal name
cannot succeed.
[20] In Orange Brand Services v Account Works Software
5, the Court cautioned
against an over ‑reliance on precedent in matters involving the likelihood of
confusion, emphasising that:
“The authors of Kerly’s Law of Trade Marks and Trade Names point out that
whether there is a likelihood of deception or confusion is a question of fact,
and for that reason, decided cases in relation to other facts are of little
assistance, except so far as they lay down any general principle. While I have
found various cases referred to by counsel for Account Works Software
informative, each was decided on its own facts, without laying down any new
principles, and I do not think it is helpful to refer to them.”
[21] This passage underscores a critical principle: the assessment of confusing
similarity is inherently fact ‑specific. While general principles may be distilled
from prior decisions, each case ultimately turns on its own factual matrix, the
nature of the marks or names in issue, and the context in which they are
encountered by the public.
[22] Applied to the present matter, the Court’s reasoning reinforces that the Tribunal
must evaluate the First Respondent’s name in its full factual context, including
the Applicant’s established trade mark rights, the visual and phonetic similarity
the Applicant’s established trade mark rights, the visual and phonetic similarity
of the names, the likelihood of imperfect recollection, and the real ‑world
5 (970/12) [2013] ZASCA 158 (22 NOVEMBER 2013).
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potential for deception or confusion. On these facts, the conclusion is
unavoidable: the First Respondent’s name appropriates the distinctive elements
of the Applicant’s trade mark and creates precisely the type of confusion the
law seeks to prevent.
F. ANALYSIS AND FINDINGS
[23] Dominant Element and the De Minimis Principle
23.1 The dominant and distinctive element in both names is ROSEMARY /
ROSE‑MARY. The only difference is a hyphen, which is legally insignificant.
23.2 In Century City Apartments Property Services CC v Century City Property
Owners’ Association 2010 (3) SA 1 (SCA), the Court quoted a European
Court of Justice which stated
“The very definition of identity implies that the two elements compared should
be the same in all respects.”
However, the above is
subject to the proviso that minute and wholly
insignificant differences are not taken into account (paras 12)
23.3 This principle has been applied consistently by the Tribunal, including in Red
Bull GmbH v Red Bull Farms (Pty) Ltd [CT007JAN2019]. Accordingly, the
names are effectively identical for purposes of section 11(2).
[24] Likelihood of Confusion or False Association
24.1 Imperfect Recollection- In American Chewing Products Corporation v
American Chicle Company 1948 (2) SA 736 (A) at 742, Greenberg JA held:
“The Court must not only consider the marks when placed side‑ by‑side but
must have regard to the position of a person who… with an imperfect
recollection… comes across the other mark.”
24.2 This principle is directly applicable. Consumers encountering ROSEMARY
(PTY) LTD after previously encountering ROSE ‑MARY are likely to assume a
connection.
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24.3 The decisive issue is whether the similarity between the names creates a
reasonable likelihood that the public will assume that the one entity is the
other, or that some form of commercial association exists between them.
(Cilliers, Louw & Van der Merwe Webster & Page: South African Law of Trade
Marks (4 ed, LexisNexis 1997) 15–16.)
24.4 Because the names are virtually indistinguishable and the Applicant’s mark
enjoys significant market recognition, the risk of confusion is considerable.
[25] Passing
‑Off Principles Apply to Company Names
25.1 In Hollywood Curl (Pty) Ltd v Twins Products (Pty) Ltd 1989 (1) SA 255 (A)
267H–268A, the Appellate Division held that there was “a reasonable
likelihood that ordinary members of the public might be confused or deceived
into believing that such merchandise emanated from the respondent”. The
Court confirmed that the use of a confusingly similar name may, on its own,
constitute passing‑off. The same reasoning applies here.
[26] Infringement of Statutory and Common‑Law Rights
26.1 The Applicant is the proprietor of the ROSE ‑MARY trade mark, registered in
class 33, which enjoys substantial goodwill and reputation in the market. The
First Respondent’s use of the confusingly similar name ROSEMARY:
26.1.1 infringes section 34(1)(c) of the Trade Marks Act, in that it takes
unfair advantage of, and is detrimental to, the distinctive
character and repute of the Applicant’s mark;
26.1.2 constitutes passing‑off, as it misrepresents to the public that the
Respondent’s business or goods are connected with, endorsed
by, or emanate from the Applicant; and
26.1.3 amounts to unlawful competition, given that it appropriates and
exploits the Applicant’s established goodwill.
26.2 The Applicant has not authorised, permitted, or consented to the
Respondent’s use of its trade mark or any confusingly similar name.
[27] Registrar’s Directives Confirm the Name is “Undesirable”
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27.1 Practice Note 1 of 2008, issued by the Registrar of Companies under the
Companies Act 61 of 1973, provides that a company name is undesirable
where it incorporates or is confusingly similar to a registered trade mark
unless the applicant has rights to such mark. The Directive further
emphasises that the Registrar must avoid registering names that may mislead
or confuse the public or prejudice the rights of trade mark proprietors. The
Companies Tribunal has consistently applied Practice Note 1 of 2008 in
name‑dispute matters, including Red Bull GmbH v Red Bull Farms (Pty) Ltd
(CT007JAN2019), confirming that a name is undesirable where it incorporates
or is confusingly similar to a registered trade mark.
[28] No Vested Rights in the Disputed Name
Cilliers, writing in THRHR (1998 and 1999), explains that the central enquiry in
name‑dispute matters is whether the existing company has vested rights in its
name such that the registration of a new, conflicting name would be
undesirable.
6 In the present matter, the First Respondent’s adoption of a
name identical to the Applicant’s registered trade mark appears deliberate.
Any suggestion that the First Respondent has acquired rights in the disputed
name is therefore untenable.
[29] Here, the First Respondent’s adoption of a name identical to the Applicant’s
trade mark appears deliberate. Any purported rights are therefore nullified.
[30] Tribunal Precedent on Undesirability
In Dimension Data (Pty) Ltd/ Chokochela Internet Solutions (Pty)
CT01503ADJ2023, the Tribunal held that an infringing name remaining on the
register may cause deception and confusion” and “hinder CIPC’s role in
maintaining and promoting good governance.”
The same reasoning applies here.
6 J.B. Cilliers “Company Names and Vested Rights” (1998) 61 THRHR 1; (1999) 62 THRHR 1.
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[31] When the statutory provisions, the applicable case law, the Registrar’s
Directives, and the academic authority are considered collectively, the
conclusion is inescapable:
31.1 the name ROSEMARY (PTY) LTD is confusingly similar to the Applicant’s
registered ROSE‑MARY trade mark;
31.2 its use inevitably conveys a false impression of association, endorsement, or
connection with the Applicant;
31.3 it infringes the Applicant’s statutory rights under section 34 of the Trade Marks
Act and its common‑law rights in passing‑off;
31.4 it is undesirable within the meaning of the Companies Act and is calculated to
cause commercial, reputational, and legal prejudice; and
31.5 it cannot lawfully remain on the companies’ register in its current form.
[32] In these circumstances, section 160(3) of the Companies Act empowers —
and, in light of the evidence, obliges —the Tribunal to direct that the First
Respondent’s name be removed or amended so as to eliminate the offending
similarity.
G. ORDER
[33] In the premises, the Tribunal finds as follows:
33.1 The First Respondent’s company name, ROSEMARY (PTY) LTD, is
confusingly similar to the Applicant’s ROSE‑ MARY trade marks and
accordingly contravenes section 11(2)(b) of the Companies Act.
33.2 The First Respondent’s name falsely implies, or is reasonably likely to mislead
a person into believing, that the First Respondent is associated with, endorsed
by, or connected to the Applicant, in contravention of section 11(2)(c)(i) of the
Act.
[34] Should the First Respondent fail to comply with this order within 30 calendar
days of its issuance, the Second Respondent is directed, in terms of section
160(3)(b)(ii), to record the First Respondent’s name as its registration number.
[35] The Tribunal’s Recording Officer (Registrar) is directed to serve this order on
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the Respondents.
[36] There is no order of costs.
Dr MINAH TONG-MONGALO