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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case no.: CT02427ADJ2025
In the matter between:
SHAMBALA GAME RESERVE (PTY) LTD Applicant
and
SHAMBALLA ON WATERFALL FARM (PTY) LTD First Respondent
COMMISSIONER OF THE COMPANIES AND
INTELLECTUAL PROPERTY COMMISSION
Second Respondent
Presiding member:
Date of decision:
Richard Bradstreet
27 March 2026
DECISION (Reasons and Order)
1. This application concerns a company name objection brought in terms of
section 160 of the Companies Act 71 of 2008 (“the Act”), in which the
Applicant seeks a determination that the First Respondent’s name does not
satisfy the requirements of section 11 of the Act. The Applicant further seeks
a default order in terms of regulation 153 of the Companies Regulations 2011,
the First Respondent having failed to file an answering affidavit in response to
the application.
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2. The basis of the objection is that the First Respondent’s name incorporates
the word “SHAMBALLA”, which is alleged to be confusingly similar to
numerous of the Applicant’s registered trade marks incorporating the word
“SHAMBALA”, and that such use gives rise to a likelihood of confusion and
misleading association. The Applicant contends that the result is a confusing
similarity between the two company names, rendering the First Respondent’s
name impermissible in terms of section 11.
DEFAULT RELIEF
3. The application was duly filed with the Companies Tribunal, and served on the
First Respondent on 11 October 2025 by way of the Sheriff. Service was also
effected on the Second Respondent in accordance with the applicable practice
requirements. The First Respondent failed to file any answering affidavit
within the prescribed time period. The Applicant then instituted an application
for default judgment in terms of regulation 153.
4. With regard to this application being brought by default, this Tribunal is
satisfied that there has been adequate service, and thus compliance with
regulation 153(2)(b). It also appears that the Applicant passes the “good
cause” test in that a reasonable explanation is given as to why the application
should be heard by the Tribunal, and there has been no undue delay in
bringing the application.
APPLICABLE LEGAL FRAMEWORK
5. Section 160(1) of the Act provides that any person with an interest in the name
of a company may apply to the Companies Tribunal for a determination
whether the name satisfies the requirements of section 11.
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6. Section 11(2) of the Act provides, inter alia, that a company name must not:
6.1. be the same as a registered trade mark belonging to another person;
6.2. be confusingly similar to such a trade mark; or
6.3. 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 another person.
Confusing similarity
7. “Similar” in section 11(2)(b) means “having a marked resemblance or
likeness”, and that the offending name should immediately bring to mind the
well-known trade mark or other name ( Bata Ltd v Face Fashions CC 2001 (1)
SA 844 (SCA)). The test is “whether, on a comparison of the two marks, it
can properly be said that there is a reasonable likelihood of confusion of both
marks are to be used together in a normal and fair manner, in the ordinary
course of business”, and making this determination involves a value judgment
(Cowbell AG v ICS Holdings 2001 (3) SA 941 (SCA) para 10).
8. Having regard to the two names in issue, there is, plainly, a substantial degree
of resemblance between them. The dominant and memorable element in
each is, respectively, “Shambala” and “Shamballa”, the only difference being
the addition of a second “ L” in the latter. In my view, the remaining
components of the names serve to heighten, rather than diminish, the
likelihood of confusion in that a farm and a game reserve alike denote rural
land, the distinction between them lying principally in their use.
9. In that context, regard must be had to “the class of persons who are likely to
be the purchasers of the goods in question” ( Reckitt & Colman SA (Pty) Ltd v
SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A) at 315F– G). The words
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“on Waterfall” convey the impression of a farm which, in practical terms, is
likely to be oriented towards tourism or leisure- related activities rather than
conventional agriculture. It follows that the probable customers of the
respective undertakings would include holidaymakers and persons seeking
resort-style accommodation or experiences, thereby increasing the likelihood
of confusion.
10. The addition of the second “L” would in my view be immaterial in the present
case since the question is whether the similarity is such that it would confuse
the “ordinary reasonable careful man, i.e. not the very careful man nor the
very careless man” (Link Estates (Pty) Ltd v Rink Estates (Pty) Ltd 1979 (2)
SA 276 (E) at 280).
11. Moreover, the doctrine of imperfect recollection must be taken into account.
As was observed in Ewing t/a The Buttercup Dairy Company v Buttercup
Margarine Corporation Ltd 1917 (34) RPC 225 at 232 and 238, the
comparison is not undertaken with the two marks presented side by side;
rather, allowance must be made for the ordinary imperfections of human
memory, with the consequence that a substantial number of persons may be
confused, if not deceived.
12. Applying that principle to the present matter, a person encountering the two
names in the ordinary course is unlikely to scrutinise them with sufficient care
to discern the presence of a second “L” in “Shamballa”. This is particularly so
given that the words would seem to be phonetically indistinguishable when
pronounced. It follows that the resemblance between the marks is such as to
give rise to a real and substantial likelihood of confusion.
13. The First Respondent’s name is therefore such as would reasonably mislead a
person to believe incorrectly that it is part of, or associated with, the Applicant.
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This arises from the incorporation of the dominant SHAMBALA element , the
phonetic indistinguishability of the names , the contextual impression created
by the full name.
14. The First Respondent’s name is confusingly similar to both the Applicant’s
trade mark and registered name, and also falsely implies or suggests an
association with the Applicant. It therefore does not satisfy the requirements
of the Act.
ORDER
15. In the result, I make the following order:
(a) The application for default order is granted.
(b) The First Respondent is directed to:
(i) change its name to one which does not incorporate “SHAMBALA”
or any confusingly similar word, and
(ii) file a notice of amendment to its Memorandum of Incorporation
within 3 (three) months of the date of this order.
(c) In the event that the First Respondent fails to comply with paragraph ( b)
above, the Second Respondent is directed to substitute the First
Respondent’s registration number as its interim company name.
__________________________
Richard Bradstreet
Member of the Companies Tribunal
27 March 2026