IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
CASE NO: CT02511/ADJ/2025
KAP LIMITED
(REGISTRATION NO 1978/000181/06) Applicant
and
KAPS ENGINEERING (PTY) LTD
(REGISTRATION NO 2023/109847/07) 1
st Respondent
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION 2nd Respondent
DECISION AND REASONS
Presiding Member of the Companies Tribunal: H K Dlepu
Date of Decision: 19TH April 2026
1. INTRODUCTION
1.1 The Applicant is KAP LIMITED a company duly incorporated in terms of the laws
of the Republic of South Africa, with registration number 1978/000181/06 and with
its registered address at 3 RD Floor, Building 2 The Views, Founders Hill Office
Park,18 Centenary Street, Modderfontein, Gauteng, 1645. The Applicant’s affidavit
was deposed to by the Secretarial Manager of the Applicant.
1.2 The First Respondent is KAPS ENGINEERING (PTY) L IMITED, a company
incorporated in terms of the company laws of the Republic of South Africa, with
registration number 2023/109847/07 and with its registered address at 12 Randall
Road, Wadeville, Germiston, Gauteng, 1428.
1.3 The Second Respondent is the Companies and Intellectual Property Commission
established by the Companies Act 71 of 2008 as a juristic person to function as an
organ of the State.
2. BACKGROUND
2.1 The Applicant issued and filed a noti ce of motion in compliance with form CTR142
in terms of Section 180 to 184 of the Companies Act, 2008 and Regulation 145(3)
of the Companies Regulations 2011 against the First Respondent, wherein the
Applicant requested the Companies Tribunal to grant it the following relief by
default namely:
2.1.1 Directing the First Respondent to change its name to one which does
not incorporate the trademark “KAP” or any other word or phrase
which is confusingly and/or deceptively similar t o the “KAP”
trademark,
2.1.2 In the event that the first Respondent fails to comply with the order set
out in paragraph 2 above within the stipulated time by theTribunal from
the date of the order, that the Second Respondent, be directed, in
term of Section 160(93)(b)(ii) read with Section 42 of the Act, to
change the name of the First Respondent to
“K2023/109874/07”(South Africa) (PTY) LIMITED as the First
Respondent’s new company name on the Companies Register, and
2.1.3 Granting the Applicant further and/or alternative relief.
2.2 The Applicant contends that the application is brought based on the following
reasons:
2.2.1 This is an in terms of Section 160 of the Companies Act 71 of 2008
for a determination and an order that the name of the First
Respondent, KAPS ENGINEERING ( PTY) LIMITED registration
number 2023/109847/07 does not satisfy the requirements of Sections
11(2)(a)(iii), and1 1(2)(c)(i) of the Companies Act, and that the First
Respondent should be directed to change its name, as provided for in
Section 160, particularly Section 160(3)(b)(ii) of the Companies Act.
2.2.2 According to paragraph 2 7 to 32 of the Applicant’s affidavit, the First
Respondent had on numerous occasions been given an opportunity to
co-operate of its own volition and was given an opportunity by the
Applicant to choose a name which is not confusingly and/or
deceptively similar to the Applicant’s “KAP” trademark, however, the
First Respondent failed to do so.
3. THE APPLICANT’S ARGUMENT
3.1. The Applicant was first made aware of the First Respondent when Moore
Attorneys of the Applicant advised it of the registration of the First Respondent
during October 2023. After conducting further searches the Applicant instructed
Moore Attorneys to address a letter to the First Respondent alerting them of the
Applicant’s “KAP” trademarks. On the 18
th of October 2024 a letter of demand
was sent to the First Respondent ’s registered address cited on the First
Respondents registered address obtained from the searches of the CIPC
database.
3.2. The Applicants did not receive a response from the First Respondents. The
Applicants submits that service was effected in accordance with the Companies
Regulation in GN 34239 of April 2011, in terms of which a notice or document to
be delivered, for any se contemplated in the Act, or the regulations, may be
delivered in any manner as set out in Table CR3.
3.3. To date, the Applicant’s Attorneys have not received a response from the First
Respondent, its directors, or employees, despite various follow ups, and its
failure to address the Applicants concerns given the continued presence of the
First Respondent on the Companies Register the Applicant is thus left with no
alternative but to proceed with the Application.
3.4. The Applicant therefore had no alternative but to file the Application for a relief.
3.5. The Applicant’s trademarks are an important asset and are crucial to its
business, and therefore the Applicant carefully protects its rights in them.
3.6. The applicant has registered various trademarks under “KAP”. Some and not all
of the various trademarks are listed in summary below as follows:
3.6.1. Trademark KAP registration number 2017/33428 in Class 36
3.6.2. Trademark KAP registration number 2017/33430 in class 39
3.6.3. Trademark KAP registration number 2017/33431 in class 42
3.6.4. The above-mentioned trademarks are still valid and in force. The statutory
trademark rights arising from the “KAP” predate the date of incorporation of
the First Respondent in 2023 by at least 6 years
3.7. The applicant contends that it has made continuous and substantive use of the
“KAP” trademarks in the course of trade in relation to a wide variety of goods
and services.
3.8. As a result of the widespread and long- term use of “KAP” trademarks over the
years by the Applicant , the Applicant has acquired a substantial goodwill and
reputation in the” KAP” trademarks which is distinctive of its goods and
qualifies for additional protection as a well-known trademark and it is highly likely
that the members of the public will assume that the F irst Respondent is in some
manner connected or associated with the Applicant or has been endorsed or
licensed by the Applicant, which is not the case.
3.9. That the use of the First Respondent’s name in trade is also likely to take an
unfair advantage of, or be detrimental to, the distinctive character and repute of
the Applicant’s well-known” KAP” trademark. The use of the First Respondents
name KAPS ENGINEERING (PTY) LIMITED will have an unfair advantage as
the result of the distinctive character and the repute of the “KAP” trademark.
3.10. That the continued use of the First Respondent’s name KAPS
ENGINEERING ( PTY) LIMITED will result in a diminution or dilution of the
applicant’s rights in its” KAP” trademark and will open the door to use by third
parties of the company names that are identical or confusingly similar to its
distinctive trademark.
3.11. That the A pplicant also has no control whatsoever that activities of the
First Respondent and the quality of its products and services, and given the
nature of the goods sold by the First Respondent, the A pplicant is extremely
concerned that the First Respondent’s name is confusingly similar to the
Applicant’s registered trademark and therefore, falls foul of the provisions of
Section 11(2) (b) of the Act, and is likely to deceive or confuse members of the
public into believing that there is some connection between the First Respondent
and the Applicant. The use of the First Respondent’s name will, therefore, also
amount to passing off at common law.
3.12. That the First Respondent’s company name does not comply with the
provisions of Section 11(2)(c) of the Act.
4. THE APPLICABLE LAW AND EVALUATION OF THE MERITS OF THE NAME
OBJETION APPLICATION
4.1. Section 11 of the Act provides as follows:
“11 criteria for names of companies.”
(1) …
(2) the name of the Company must
(a) not be the same as:
(i) the name of another company, domesticated company,
registered external company, close corporation, or co-operative.
(b) not be confusingly similar to a name, trademark, word expression
contemplated in paragraph (a) unless:
(i) in the case of name referred to in paragraph (a)(i), each
company being any such similar name is a member of the same group of
companies.
(c) not falsely imply or suggest, or be such as would reasonably
mislead a person to believe incorrectly, that the company:
4.2. Section 160 of the Act deals with disputes concerning reservation or registration
of company names and enunciates the jurisdiction of the Companies Tribunal as
follows:
(i) A person to whom a notice is delivered in terms of this act with respect to an
application for reservation of a name, registration of a defensive name,
application to transfer the reservation of a name or the registration of a
defensive name, or the registration of a company’s name, or any other
person with an interest in the name of a company, or any other person with
interest in the name of a company, may apply to the Companies Tribunal in
the prescribed manner and form for a determination whether the name, or
the reservation, registration or use of the name, or the transfer of any such
reservation or registration of a name, satisfies the requirements of this Act.
(2) An application in terms of subsection (1) may be made – (a) within three
months after the date of a notice contemplated in subsection (1), if the
applicant received such a notice, or (b) on good cause shown at any time
after the date of the reservation or registration of the name that is the
subject of the application, in any other case.
(3) After considering an application made in terms of s ubsection (1) and any
submissions by the applicant and any other person with an interest in the
name or proposed name that is the subject of the application, the
Companies Tribunal:
(a) must make a determination whether that name, or the
reservation, registration of the name, satisfies the
requirements of this act; and
(b) May make an administrative order directing-
(i) the Commission to.
(aa) reserve a contested name or register a particular defensive
name that had been contested, for the Applicant.
(bb) register a name or amended name that had been contested
as the name of the company.
(cc) cancel the reservation of a name, or the registration of a
name, or the registration of a defensive name; or
(dd) transfer, or cancel the transfer of, the reservation of a name,
or the registration of a defensive name; or
(ii) a company to choose a new name, and to file a notice of amendment to its
Memorandum of Incorporation, within a period and on any conditions that the
tribunal considers just equitable and expedient in the circumstances,
including a condition exempting the company from the requirement to
pay the prescribed fee for filing the notice of amendment contemplated in this
paragraph”.
4.3. Companies Regulation 153 of 2011 provides for default orders:
4.3.1. if a person served with an initiating document has not filed a response
within the prescribed period, the initiating party may apply to have the order,
as applied for, issued against that person by the Tribunal.
5. EVALUATION
5.1. I am convinced that A pplicant has made out a case for the main application to
be considered on a default basis . and I now proceed to deal with the merits of
the case, and I found that the First Respondent was alerted and given sufficient
opportunity to remedy the problem.
5.2. “Similar” in section 11(2)(b) would be “having a marked resemblance or
likeness” and that the offending name should immediately bring to mind the well-
known trademark or other name. the test for ‘confusingly similar” is, as in the
case of passing- off. “…a reasonable likelihood that ordinary members of the
public, or a substantial section thereof, may be confused or deceived into
believing that the goods or merchandise of the former are the goods or
merchandise of the latter or confusion or deception is a question of fact to be
determined in light of the particular circumstances of the case”.
5.3. “Confusingly similar” in section 11(2)(b) has to be examined carefully to
determine if this in fact so in casu. In considering case law on the concept, it
must be as alike in a manner that will confuse the “ordinary reasonable careful
man, that is, not the very careful man nor the very careless man. “ The
reasonable man” has been further qualified; “A rule of long standing requires
that the class of persons who are likely to be the purchasers of the goods in
question must be considered in determining whether there is a likelihood of
confusion.
5.4. As early as 1948 the courts considered it appropriate to say “the court must not
only consider the marks when placed side- by-side must have regard to the
position of a person who might at one time see or hear one of the marks and
later possibly with an imperfect collection of the mark, come across the other
mark.
5.5. In 1983, the SCA in Plascon Evans Paints (Ltd v Van Riebeeck (Pty) Ltd
1983 (3) SA 623 (A) explained that it is necessary to consider the dominant and
striking features of the marks. In this instance “ KAP” is the dominant and
striking feature of both the Applicant’s trademark and the First Respondent’s
company name.
5.6. The court ’s approach in such matters is that : “the decision involves a value
judgment and that the ultimate test is whether; on a comparison of the two
judgment and that the ultimate test is whether; on a comparison of the two
marks, if can properly be said that there is a reasonable likelihood of confusion if
both marks are to be used together in a normal and fair manner, in the ordinary
course of business”.
5.7. Most recently but before the promulgation of the Companies At, No 71 of 2008,
in the case of Polaris Capital (Pty) Ltd v The Registrar of Companies and
Another 2010(2) SA 274 (SCA) , the learned judge in terms of Section 45(2) of
the 1973 Companies Act stated as follows: “it is submitted that by allowing the
close corporation’s name to remain on the register, in addition to causing
deception and confusion, its registration will hinder the registrar’s role in
maintaining and promoting good governance and administration of corporate
entities in the interest of the general public”.
5.8. Having considered the Applicant’s “KAP” trademark and the First Respondent’s
KAPS ENGINEERING ( PTY) LIMITED I am convinced that the First
Respondent is in breach of the Companies Act.
6. ORDER
6.1. I therefore make the following order:
6.1.1. That the Default Judgment relief as sought by the Applicant be granted.
6.1.2. That the name objection application lodged by the A pplicant against the
regulation of the Companies name of the first Respondent being KAPS
ENGINEERING ( PTY) L IMTED in the Register of the Companies by the
CIPC is hereby granted.
6.1.3. That the first Respondent’s name does not comply with Sections 11(2)(b)
and 11(2(c) (i) of the Act.
6.1.4. That the first Respondent is directed in terms of Section 160(3)(b)(11), to
choose a name which does not consist of or incorporate the words KAPS
ENGINEERING (PTY) LIMITED or any other combination which is
confusingly and/or deceptively similar to the applicant’s KAP LIMITED
trademark.
6.1.5. That the Second Respondent be directed to change the name of the
Respondent to the regulative number “K2023109847” (South Africa) (PTY)
LIMITED in the event the F irst Respondent not complying with the above
within sixty (60) days from date of this order.
6.1.6. That the S econd Respondent cause, this order to be served on the First
Respondent within fourteen (14) business days calculated from the date of
receipt of this order.
6.1.7. There is no order as to costs.
HLALELENI KATHLEEN DLEPU
MEMBER OF THE COMPANIES TRIBUNAL