REPUBLIC OF SOUTH AFRICA
IN T H E HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
( l ) REPORT ABLE: NO
(2) OF INTEREST TO 0 1 R JUDGES: NO
(3) • REVISED· 0
Date .: 1 0 March 2026 E van der Schyff
In the matter between:
REIGN BEVERAGE COMPANY LLC
and
FOXHOUSE TRADING (PTY) LTD
REGISTRAR OF TRADE MARKS
CASE NO.: 2024-065619
APPLICANT/OPPONENT
FIRST RESPONDENT/
TRADEMARK APPLICANT
SECOND RESPONDENT
JUDGMENT:
Van der Schyff J
INTRODUCTION
[1) This application concerns an objection to the registration of the trade mark
REIGNWATER. In terms of section 59(2) of the Trade Marks Act 194 of.1993 , the
Registrar of Trade Marks has referred the matter to this court for determination. The
first respondent , Foxhouse Trading (Pty) Ltd, seeks to register the mark under class
2
32 for 'energy and sports drinks; drinks containing nutritional supplements and
nutrients, vitamins and multivitamins.'
[2] The applicant in this application opposes the registration on the grounds of section
10(3), 10(4), 10(12) and / or 10(13) of the Trade Marks Act.
[3] The parties are herein referred to as Foxhouse or the trade mark applicant, and the
opponent, respectively.
[4] Counsel for the opponent stated at the onset that the court is not called upon to
decide between the parties who owns the trademark REIGN or REIGNWATER, nor
is the court called upon to decide who was first to adopt use of the word REIGN. The
court is not called upon to decide who has the greater right to obtain registration of .
these marks. The application is solely about the authenticity of the one trade mark
application - does it meet the strict requirements of the Act?
THE TRADE MARK APPLICANT'S NARRATIVE
[5] Ro~erto Renzo Reffo (Mr. Reffo) is the sole director: of Foxhouse Trading (Pty) Ltd,
the trade mark applicant (Foxhouse). He is also the general manager and a
shareholder of Adriatic Ship Supply and Trading Company (Pty) Ltd (Adriatic).
Adriatic is a family-owned business established in 1970 by Mr. Reffo's grandfather.
Adriatic specializes in the trade, manufacture, import, and export of food, beverages,
and catering equipment. Mr. Reffo runs the business with his brother and father.
[6] Mr. Reffo wanted to venture beyond the family business. He decided to develop and
introduce a new non-alcoholic beverage into the market under the REIGNWATER
brand. He contacted OM Kisch Inc (Kisch IP) to commence preparatory work on
name clearance and protection for the REIGNWATER brand name. On 11 July
2017, he instructed Kisch IP to conduct a pre-filing availability search. This
instruction was done using the Adriatic email profile. On 28 July 2017, a separate
entity, Fox~ouse, was incorporated as the vehicle for conducting Mr. Reffo's
business, separate from the family business.
2
3
[7] Mr. Reffo explains that during the development phase of REIGNWATER, he
sometimes "tapped into the Adriatic supplier database"· using his Adriatic profile and
mailbox. As a result, some correspondence was exchanged through Adriatic's email
and mailbox, and some through Foxhouse's. All cor~espondence,· however, was
always conducted for and on behaif of Foxhouse. Foxhouse also launched other
products in South Africa under the LOS LOCOS, ROBERTO VOLANTE, and
MOOCOW trade marks.
[8] On 23 November 2017, the trade mark ~pplication for registration of REIGNWATER
as a trade mark wci's filed in .Foxhouse's name. Steps were subsequently taken to
develop the REIGNWATER product. During August 2018, . correspondence was
exchanged with a well-known sports supplement producer, JJnited Sports.Nutrition
(USN), to develop a suitable formulation for the REIGNW.ATER product. Another
health care consultancy firm was eventually engaged in November 2019 to proceed
with the formulation of the product. In November 2019, a graphic designer was
commissione,d to assist with the conceptualisation of the REIGNWATER brand
identity and product designs. The graphic designer invoiced Adriatic Ship Supply' for.
conceptualising the brand design, but she confirms under oath that her agency was
commissioned by Foxhouse.
[9] In anticipation of the product launch in 2022, Foxhouse commenced with steps to
create its REIGNWATER website and social media profiles. Foxhouse, however,
experienced various commercial delays and faced numerous technical and
mechanical difficulties, as well as issues related to raw material availability. It was
thus only from the latter part of April 2023 that Foxhouse was in the position,
financially and commercially, to commence use of its REIGNWATER trademark.
[1 O] The product was first described as 'nutrient enhanced water that sits between the
sports drink and energy drink categories'. It is eventually marketed as 'Performance
sports drink and energy drink categories'. It is eventually marketed as 'Performance
energy water'. The core ingredients comprise water, moringa extract, caffeine,
vitamin 83, 85, B6, and 812, and L-Theanine.
3
4
THE OPPONENT'S NARRATIVE
[11] The opponent, Reign Beverage Company LLC, represented by Mr. Paul L Dechary
(the opponent or Mr. Dechary) opposes the trade mark application. The opponent's
principal business office is located in Los Angeles, United States of America.
[12] The opponent objects to the registration of the trade mark and contends that:
i. Foxhouse is not the proprietor of the trade mark REIGNWATER;
ii. The trade mark is not proposed to be used or is not being used for the
specification of goods for which it is applied;
iii. A mark containing the word "water' is misdescriptive of any category of goods
not being water.
[13] I pause to note that the full extent of the opponent's objection only became clear in
the replying affidavit filed, and after an amendment of the papers. Since no objection
was raised to the subsequent amplification of the objection and amendment, the
application is considered as amplified.
[14] The opponent emphasised that online company searches indicate that Foxhouse
has only one director, Robert Renzo Reffo, and is operated from a registered
address similar to that of Adriatic Ship Supply and Trading Co. (Pty) Ltd (Adriatic).
Mr. Reffo is also a director of Adriatic. The opponent, in its founding affidavit, stated
that it's investigation ir)dicated that Foxhouse does not have a functional website,
Facebook page or account, nor any other social media footprint. The Linkedln page
and account appear to ' have been automatically generated. There is no indication
that Foxhouse commenced with the REIGNWA TER trade mark, or that products
were available in the marketplace. Foxhouse is not registered for Value-Added Tax
With the South African Revenue Service, which would be expected of a busine~s
with a genuine commercial interest. The opponent essentially claims that no
evidence of actual commercial activity has been provided.
4
5
[15] The opponent is 'of the view that their investigations do not :5how that Foxhouse has
at any time used the REIGNWATER mark in relation to the specified products listed
in class 32. Neither can it be gleaned that the mark is proposed to be used in respect
of the goods listed in class 32. Despite requests for evidence of Foxhouses's use or
proposed use of the mark in connection with 'energy and sports drinks,' no proof has
been provided. The opponent contends that Foxhouse conflates various categories
of beverages (energy, sports and water) and that the evidence provided by
Foxhouse only supports an alleged intention to use the trade mark in connection
with 'water', and 'flavoured' or 'enhanced water'. The use of the word 'water'
distinguishes the product from energy or sports drinks. In addition, the notional
consumer is likely to understand a water beverage to be a colourless, tasteless
beverage which does not contain sweeteners or additives - the trade mark is
confusing or deceptive due to the manner of its use. The opponent wants to prevent
Foxhouse from entering the market in_ the energy drinks ,category under its trade
mark REIGN. The opponent further claims that an indepen?ent product test revealed
that the product contains 76.5mg of caffeine per single serving of 500 ml and not
75mg as claimed by Foxhouse. The product should thus be labeled as high in
caffeine, which it is not.
ONUS
[16] The parties raised the issue of who bears the onus in this application, in particular
as regards opposition under section 10(4). In National Brands Limited v Cape
Cookies CC and Another, 1 the Supreme Court of Appeal confirmed that there is an.
overall onus on the applicant for registra.tion of a trade mark to satisfy the court that
there is no bar to registration under the Act.
(17] In El Baik Food Systems Co SA v Al Baik Fast Food Distribution Co SAE (El Baik)2 ' . Murphy J provided a practical exposition of the procedural approach to be adopted.
The learned judge reiterated that proceedings of this kind are essentially motion
1 2024 (2) SA 296 (SCA) at para [6].
2 (A998/13) [2015] ZAGPPH C 620: 2015 SIP 302 (GP) (1 September 2015).
5
, , . .
•: • ":.··:.· .-r
.,, ' "-; .... . .
6
proceedings governed by the general rules of evidence and pleadings applicable to
motion proceedings. Murphy J explained that as a general rule, the trade mark
applicant bears the onus of showing that the mark -~ought to be registered by it is, in
fact, registrable. In motion proceedings the question of onus usually does not arise.
Where an issue of fact arises, however, it falls to be determined by the Plascon
Evans ru!e - irrespective of where the legal or evidential onus lies. In a trade mark
application, the court may be required to determine whether an evidential burden
imposed by the statute has been met.
(18] As held by Supreme Court of Appeal in New Balance Athletic Shoe Inc v Dajee and
Others NNO, 3 where the issue of "use" is central, the proprietor respondent bears
the onus of proving relevant use. as the proprietor respondent can be expected to
have comprehensive and peculiar kno~ledge of the fact of "use" if it_ has occurred.
In these circumstances, it can be expected that a proprietor respondent who alleges
relevant use will advance clear and compelling evidence of that fact, and ought not
to expect that the evidential burden will be discharged by allegations that are sparse,
ambiguous , or lacking in conviction.
(19] Murphy J explained in El Baik4 - "[a]s in all motion proceedings the appellant (the
opponent before the Registrar) was required to set out in the founding affidavit
sufficient facts to disclose a cause of action and upon which the court could find in
its favour." The learned judge reiterated that the allegations in the founding affidavit
must make out a prima facie case in as complete ways as the circumstances
demand, and that bal~ allegations will not suffice. The respondent (the trade mark
applicant) is then required to state in the answering affidavit which of the applicant's
allegations it admits and which it denies and set out its version of the relevant facts.
Failure to deal with an allegation will amount to an admission.
Failure to deal with an allegation will amount to an admission.
[20] The determination of wh~ther an opponent established a prima facif;J case requires
a fact-specific inquiry. While an opponent may allege ma/a tides , an objection under
section 10(4) based on a lack of bona tide intention to use the mark as a trade mark,
3 (251/11) [2012] ZASCA 3; 2012 BIP 102 (SCA) (2 March 2012) at para [17]
4 Supra, at para [11].
6
7
is not invariably linked to an ulterior purpose. Consequently, an opponent relying on
seclion 10(4) is not invariably required to plead that the registration was intended for
an ulterior purpose before it can be said that a prima facie case is made out.
[21] With these principles in mind, I turn to the specific grounds of objection.
Section 10(3) of the Trade Marks Act
[22] Section 10(3) of the Trade Marks Act prohibits the registration of a mark in relation
to which the applicant for registration has no bona tide claim to proprietorship. The_
opponent took issue with Foxhouse's claim to proprietorship in the papers filed but
did not address the issue in the heads of argument filed. The draft order handed up
by the opponent's counsel, however, still reflects reliance on section 10(3) as a
ground of opposition:
[23] The authors of the commentary The South African Law of Trade Marks, Unlawful
Compstition, Company Names and Trading Styles5 state unequivocally that it is
settled law that the person who has appropriated the mark for use in relation to
goods or services as a trade marl< can claim to be proprietor. No case is made out
on the papers that Foxhouse was aware, at the time the application for registration
was submitted, that another person or entity held a better claim to ownership. The
main complaint that underpins this objection appears to be that Foxhouse did not
use the mark prior to its registration.
[24] Foxhouse conceptualised the REIGNWATER mark and brand identity with the
intention of using it in the future. As Murphy J held in El Baik6- "A person who has
adopted the mark for its proposed future use in relation to goods or services as a
trade mark can claim to be a proprietor." (my emphasis.) The mere fact that the
mark was not in use when the registration application was filed is thus not in itself a
disqualification of Foxhouse's claim to proprietorship. Foxhouse's bona fide choice
5 CE Webster and GE Morley, 4th ed. LexisNexis.
6 Supra, at para [29].
7
8
of the mark and its proposed use is enough to entitle it to claim proprietorship of the
mark.7
Section 10(4) of the Trade Marks Act
[25) To qualify for registration, a trade mark applicant must have a bona tide intention to
use the trade mark. While actual use is not a prerequisite for registration, it is
subsequently required to immunize the mark against expungement for non-use. This
intention must be more than subjective or speculative; it must be a firm, present
resolve to use the mark as a trade mark 1n the course of trade, rather than a mere
desire to reserve a monopoly on the mark. While evidence of such intent must be
contemporaneous with the filing, it need not predate it.
[26) In Extraction (Pty) v Ltd v Tyrecor (Ply) Ltd, 8 the Supreme Court of Appeal held that
in determining a bona tide intention, a court must examine the course of events
leading up to the application. Such -an inquiry would distinguish a genuine purpose
to use the mark in trade from an application filed for an ulterior purpose.
[27] It is well-establishe d that an intention to use, means a definite and present intention
to use the mark as a trade mark in relation to certain goods or services at the time
the application is made.9 There must be an intention to trade commercially in the
particular goods for which the mark is registered. Th~s resolve, when expressed in
an answering affidavit, must be substantiated by facts for the court to make a finding
in this regard.
[28] In this application, the opponent's objection based on section 10( 4) is based on
Foxhouse not having a sufficien_tly elaborate social media footprint, that the bulk of
the preliminary actions preceding the submission of the application for r.egistration
seems to have been done under the banner of another entity trading as Adriatic Ship
7 Oils International (Pty) Ltd v WM Penn Oils Ltd 1965 (3) 64 (T) at 72G-H .
8 (2015) ZASCA 78; 2015 SIP 253 (SCA) (28 May 2015) at para [33).
8 (2015) ZASCA 78; 2015 SIP 253 (SCA) (28 May 2015) at para [33).
9 Ritz Hotel Ltd v Charles of the Ritz Ltd 1988 (3) SA 290 (A) at 31 0C.s
8
9
Supply, and that Foxhouse nas not used the mark in relation to any product in class
32, until at least 2023.
[29] Upon scrutinising the papers file? by the respective parties, I find no material dispute
of fact. The extent of Foxhouse's social media footprint is arguably the only issue
that can be typified as a factual dispute, and it is not determinative of any of the
issues before the court. The alleged dispute arises not from the facts themselves
but from the opponent's interpretation of them. Foxhouse does not deny that some
of the correspondence and pre-registration actions were done under Adriatic's
banner.
[30) I can find no fault with Mr. Reffo's explanation that he initiated investigative steps
and sent out correspondence utilising his Adriatic email. Similarly, the fact that the
graphic designer's invoice was addressed to Adriatic is of little consequence, as the
designer has confirmed under oath that the work was done for Foxhouse. There is
no evidence that suggests that Adriatic intended to claim proprietorship of the
REIGNWATER mark or that Foxhouse was "stealing a march". The objections in this
regard do not accoLJnt for the process involved in conceptualising and developing a
new product and its branding.
[31] The crisp issue is whether a bona tide intention to use a mark as a trade mark is
established where an applicant conducts only an availability se~rch prior to filing for
• registration of the mark, but commences recipe development and brand design
some months later.
[32] Availability or clearance searches are typically regarded as preliminary legal steps
taken to assess whether a mark may be registrable. On its own, it generally
demonstrates prudence, and not commercial intention. This position changes when
a trade mark applicant files an application for registration subsequent to an
availability search being conducted. The filing of a trade mark application is a
concrete act through which bona tide intent manifests, and in the context of a
concrete act through which bona tide intent manifests, and in the context of a
particular case, it might prove to be sufficient. Again, it is critical not to conflate
sections 10(4) with the more onerous burden placed on a proprietor in expungement
proceedings. Whether the filing of an application subsequent to an availability search
9
10
is enough to ward off an objection under section 10(4) will depend on the facts of
each matter and the nature of the prima facie case the objector has made out.
[33] As noted in The South African Law of Trade Marks, a court should not lightly draw
an adverse inference from a trade mark applicant's inability to provide a precise
commencement date for use. To hold otherwise would place an undue burden on
applicants who may not yet have finalised the granular details of their business plans
by the time they filed their applications.
[34] Section 10(4) does not require the bona tide intention to commence using the trade
mark within a specific time period after registration. Section 27 suggests that the
legislature was mindful of the protracted nature of product development , hence the
five-year period before a mark becomes vulnerable for non-use. Foxhouse was
under no obligation to commence commercial sales using its trademark immediately
upon registration.
[35] Since the ambit of the relief sought in this application is limited, this court is not
seized with an application to expunge the trade mark. Foxhouse's initial bona tide
intention to use the mark as a trade mark in relation to· its still-to-be-developed
product in class 32, is corroborated by subsequent events that included recipe and
brand identity development. That the product was eventually launched serves as
objective confirmation of the original intent, notwithstanding any intervening delay.
Sections 10(12) and 10(13)
[36] The final two grounds of objection are closely related. First, the opponent avers tha·t
the use of the REIGNWATER mark in relation to the goods specified in the
FoxHouse application would be likely to _cause confusion and deception. Secondly,
that the manner.in which Foxhouse has actually used the REIGNWATER mark is
likely to cause confusion and deception.
[37] In terms of section 10(12) a mark which is inherently deceptive or the use of which
[37] In terms of section 10(12) a mark which is inherently deceptive or the use of which
would be likely to deceive or cause confusion snail not be registered as a trade mark.
The section is designed primarily to protect the public-against possible deception or
10
. ,. •' ..
11
confusion.10 In a particular case a device or word as part of a trade mark may convey
a false impression as to the character or quality of the product. In this matter, the
question is whether in the compound word REIGNWATER, the use of the last
element of the word, also referred to as the head of the compound, WATER, is likely
to confuse or cause deception.
[38] The opponent's submission is that while Foxhouse has applied to register the mark
REIGNWJ~.TER in relation to "energy and sports drinks; drinks containing nutritional
supplements and nutrients, vitamins and minerals", it did not seek registration in
relation to water or mineral waters. The opponent argues that by adopting a mark
signifying "water" for products restricted to energy drinks, the Foxhouse creates a
misrepresentation . Reliance was placed on the analogy of using the word 'merino"
or the device of a sheep on cotton goods - an example cited in The South African
Trade Marks Law as inherently deceptive. The risk is exacerbated by the fact that
REIGNWATER is a homophone for "rainwater", despite the beverage being
fundamentally incompatible with the ordinary and regulatory definition of water.
[39] Foxhouse, on the other hand, submits that the prefix REIGN functions as a qualifier.
It argues that "reign" denoting sovereignty or power, transforms the compound into
a conceptual whole. Thus, REIGNWATER signifies a beverage that transcends
ordinary water - a "powerful" drink consistent with the energy-enhancing nature of
the product.
[40] In assessing the likelihood of confusion, the court assumes the perspective of the
average consumer, who is deemed reasonably well-informed and observant. I am .. not persuaded that t he mark REIGNWATER inherently conjures images of pure
fresh water. On the contrary, it is a creative play on words. In my view, the consumer
would.recognise the mark as a distinctive brand name for a water-based beverage
that has been enhanced into something "more" than its base component. The mark
that has been enhanced into something "more" than its base component. The mark
is unusual and posse_s~es a conceptual identity of its own. It is distinguishable from
the mark considered by the European General Court in Gaffe Nero Group Ltd v
10 Webster and Morley , supra, at para (6.6).
11
12
European Union Intellectual Property Office,11 a matter referred to by the opponent ,
as the compound word here creates a suggestive , rather than purely descriptive ,
meaning.
[41] Section 10(13) provides that a mark shall not be registered as a trade mark if the
mark, as a result of the manner in which it has been used, would be likely to cause
confusion or deception . The opponent formulates its objection as follows:
To the extent that the Court is willing to accept that the evidence adduced
in Foxhouse 's 2023 affidavit has any bearing on the application , it is
apparent that this evidence shows that Foxhouse has used the
REIGNWATER mark in a manner that is likely to lead to confusion or
deception.
Firstly, Foxhouse's 2023 Affidavit describes REIGNWATER beverage as a
berry and tropical fruit flavoured energy water which includes the following
ingredients: moringa extract, caffeine, various B vitamins, L-Theanine , citric
acid, taurine . flavourings , artificial sweeteners , and sodium benzoate.
However , given the volume. of caffeine present, this beverage would fall
within what the Soft Drink regulations (also issued under the FCDA) define
as a caffeinated beverage. This definition covers flavoured or non-flavoured
beverages which contain added caffeine .
Next, it is apparent from the material annexed to Foxhouse's 2023 Affidavit
that:
• REIGNWATER is the most prominent element on the can;
• The beverage is displayed in the same fridges as other beverages including
water, in some instances, it is displayed on the same shelf as bottled water,
and
• The beverage is described as a 'berry and topical fruit flavoured energy
water.'
11 Case T-29/16, EU:T:2016:635
https://infocuria. curia.eu ropa .eu/tabs/document?source=document&text=&docid= 184903&page In dex-0&doclang=EN&mode=lst&dir=&occ=first&part=1 &cid=8970~6 accessed on 6 March 2026.
12
13
Accordin gly, not only does the mark REIGNWATER communicate that the
goods to which it applied are water beverages , but the merchandising of the
products exace rbates that (mis)apprehension ."
(42] I find no merit in this objection. The product is clearly described as energy water ', a
description that sufficiently distingu ishes it from water. The opponent does not make
out a case that a trade mark linked to a beverage that falls within the definition of a
caffeinated beverage under the Soft Drink regulations is prohibited from being
registered in class 32, or that it is legally impermissible to use the descriptive word
WATER as part of a soft drink name. I agree with the trade mark applicant that an
average consumer would be alive to the range of beverage products sold side-by
side on a store shelf because this is factually what consumers encounter when
purchasing such goods.
COSTS
[43] Both parties sought costs o_n scale C in the even~ of them being successful. Costs
follow success. Matters of this kind are complicated , and the scale sought is justified .
ORDER
In the result, the following order is granted:
1. The objections, and the application, are dismissed with costs on scale C.
E van der Schyff
Judge of the High Court
Delivered: This judgmen; is handed down electronically by uploading it to the electronic file of . this matter on Case Lines. In the event that there is a discrepancy between the date the judgment
is signed and the date it is -uploaded to Caselines, the date the judgment is uploaded to
Caselines is deemed to be the date that the judgment is handed down.
13
14
For the applicant/opp onent:
With:
Instructed by:
For the first respondent/ trade mark applicant:
Adv O Salmon SC
Adv. I Learmonth
Adams & Adams
Adv. P Cirone
Instructed by:
Date of the hearing:
Date of judgment:
14
D M Kish Inc
16 February 2026
10 March 2026