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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case no.: CT02541ADJ2026
In the matter between:
AFFORDABLE POWER SOLUTIONS (PTY) LTD Applicant
and
APS SADC (PTY) LTD First Respondent
COMMISSIONER OF THE COMPANIES AND
INTELLECTUAL PROPERTY COMMISSION
Second Respondent
Presiding member:
Date of decision:
Richard Bradstreet
3 June 2026
DECISION (Reasons and Order)
1. This is an opposed application 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 (“Respondent”)’s registered name,
“APS SADC (Pty) Ltd”, does not satisfy the requirements of section 11(2) of
the Act, together with consequential relief directing the Respondent to amend
its name so as to remove the element “APS”, failing which the Companies and
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Intellectual Property Commission (“the CIPC”) is to substitute the
Respondent’s registration number for its name.
2. The Applicant is the proprietor of a series of trade mark s filed in 2023 for the
word mark “APS” and associated logo marks across a range of classes . The
Respondent was incorporated on 29 August 2017, some two years before the
Applicant’s incorporation in 2019, and some six years before the Applicant’s
trade mark filings.
3. The application is opposed. The Respondent filed an answering affidavit
deposed to by Ms Ramani Naidoo, to which the Applicant replied. The
Applicant accordingly bears the ordinary onus of establishing that the
Respondent’s name does not comply with section 11. The matter was heard
on 23 April 2026. Mr L Dixon appeared for the Applicant and Mr M Metcalfe
for the Respondent.
THE STATUTORY FRAMEWORK AND THE TRIBUNAL’S FUNCTION
4. Section 160(1) of the Act entitles any person with an interest in a company’s
name to apply to the Tribunal for a determination whether the name satisfies
the requirements of section 11. Upon such a referral the Tribunal must, in
terms of section 160(3), decide whether the name satisfies those requirements
and, if it does not, may make an administrative order of the kind sought in this
matter.
5. Section 11(2) provides, so far as is presently relevant, that the name of a
company must not:
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5.1. be the same as a registered trade mark belonging to another person, or
a mark in respect of which an application has been filed in the Republic
for registration as a trade mark (section 11(2)(a)(iii));
5.2. be confusingly similar to such a trade mark or mark (section 11(2)( b));
or
5.3. 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 (section 11(2)(c)).
6. It is necessary at the outset to be precise about the nature of the function that
section 160 confers. The Tribunal’s task is the discrete and essentially
administrative one of determining whether a registered name conforms to the
standard prescribed by section 11. It is not a court of general jurisdiction in
trade mark or unlawful competition. The comparison required by section 11
therefore takes the registered trade mark as it finds it: the mark is on the
register, and its validity is not a matter the Tribunal is equipped or empowered
to revisit. Questions of infringement, passing- off, the strength or vulnerability
of the registration, and the substantive rights of a prior user are not within the
Tribunal’s remit, and a party who wishes to vindicate or to impugn such rights
must do so in the High Court.
7. As to the content of the inquiry into “ confusing similarity”, the established
principles are settled and have not been brought in dispute. “Similar” in
section 11(2)(b) means “having a marked resemblance or likeness ” (Bata Ltd
v Face Fashions CC 2001 (1) SA 844 (SCA) para 14). Whether there is a
confusing similarity is a value judgment ( Cowbell AG v ICS Holdings Ltd 2001
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(3) SA 941 (SCA) para 10), to be made on the assumption that the name and
the mark are used together in a normal and fair manner in the ordinary course
of business.
8. The question is whether there is a reasonable likelihood that ordinary
members of the public, or a substantial section of them, may be confused or
deceived into believing that the goods or services of the one are those of the
other, or are connected therewith ( Adidas AG v Pepkor Retail Ltd (187/12)
[2013] ZASCA 3 para 28). The Supreme Court of Appeal (in Bata supra at
para 8, citing Plascon-Evans at 640G-I) has stated that:
“The only question that has to be decided in respect of the alleged infringements
under s 34(1)(a) is whether the appellant has established that a substantial number of
persons will probably be deceived into believing or confused as to whether there is a
material connection in the course of trade between the respondents’ clothing and the
appellant’s trade mark.” (Emphasis added.)
9. The assessment is a “global” one, which takes into account the visual, aural,
and conceptual similarities ( Cowbell AG v ICS Holdings Ltd 2001 (3) SA 941
(SCA)), and the comparison is made through the eyes of the ordinary,
reasonable consumer, allowing for imperfect recollection, and the names are
to be viewed as they would be encountered in the marketplace ( Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
640G–641E).
PRELIMINARY ISSUES
The Proper Construction of Section 11(2)
10. A question of construction was ventilated at the hearing which may be
convenient to resolve before a consideration of the merit s. The Respondent’s
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submission, drawn from th is Tribunal’s decision in Mondi South Africa (Pty)
Ltd v Mondi LL (Pty) Ltd (CT01288ADJ2023) [2023] COMPTRI 62 (“ Mondi”)
(see paras 42 to 48) , was that an applicant under section 11 must establish
three cumulative requirements – that the name is the same as the mark, that it
is confusingly similar, and that it falsely implies an association – and that a
failure to establish any one of them is fatal to the application.
11. I cannot agree with this interpretation, although – since the requirements are
framed in the negative (what the name may not be) – one might say that they
all must be satisfied in the sense that the name must meet all of these
negative requirements. The provision does not set out a list of elements which
an applicant must prove in the affirmative. It states the conditions which a
name must satisfy in order to be permissible: a name “must not” be the same
as a registered mark; it “must not” be confusingly similar to such a mark; it
“must not” falsely imply an association. These are cumulative requirements of
compliance, not cumulative requirements of proof. It follows that a name fails
to comply with section 11 if it offends against any one of the sub-paragraphs; it
need not offend against all of them.
12. The Applicant accordingly succeeds upon establishing disqualification under
any one of the subsections of section 11(2). That this is the correct reading is
confirmed by the structure of the subsection as a whole. Section 11(2)( d)
prohibits a name that includes an expression amounting to propaganda for
war, the incitement of imminent violence, or the advocacy of hatred. A
cumulative-proof construction would have two necessary implications: first, no
company name would be impermissible where an objection is based purely on
likeness, unless it were also a name of the nature contemplated in subsection
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(d) involving war propaganda, violence or hatred; and secondly, a name that is
objectionable on the latter basis would only be prohibited if it also met the
requirements in subsections ( a) to ( c). Those consequences provide a
sufficient answer to the proposed construction.
The Scope Of The Enquiry And The Respondent’s Substantive Defences
13. The Respondent advanced, with considerable care, two principal lines of
defence directed not at the comparison itself but at its right to retain its name
notwithstanding the comparison. The first was a defence of common- law
protection through prior use, founded upon a series of invoices said to
evidence continuous trading under the name “APS SADC” since 2018. The
second was a defence of statutory protection under the Trade Marks Act 194
of 1993 based on bona fide prior use of a mark. The submission, in essence,
was that an entity which has traded under a name for some years before the
registration of a conflicting trade mark ought not to be deprived of that name
by the later registration.
14. There is an evident fairness in the proposition, and it was advanced
responsibly. The difficulty is that it engages rights and defences that lie
outside the section 11 enquiry. The defences identified are defences to
infringement under the Trade Marks Act, or to a claim in passing- off; they
presuppose proceedings in which the relief sought is to restrain or to permit
use of a mark, and in which the relative priority and bona fides of the parties’
rights fall to be adjudicated.
15. Section 11, however, asks a narrower question: whether the registered name,
compared with the registered mark, conforms to the statutory standard. A
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name does not cease to be confusingly similar to a registered mark because
its proprietor may have a good defence to an infringement action; the two
enquiries are distinct, and the second is not before the Tribunal.
16. The Respondent emphasised, correctly, that it adopted its name in 2017, well
before the Applicant’s 2023 filings. As against a claim of infringement, that
priority may be of considerable significance. But section 11(2)( a)(iii) and ( b)
contain no temporal qualification in favour of the earlier -registered company
name: the comparison is with “a registered trade mark” or “a mark in respect
of which an application has been filed”, and the section does not exempt a
name merely because it was registered first. The mere registration of a
company name does not, in any event, confer a right to use that name where
the use conflicts with the rights of another ( Peregrine Group (Pty) Ltd v
Peregrine Holdings Ltd 2001 (3) SA 1268 (SCA) para 12). The temporal
priority on which the Respondent relies is therefore a matter for whatever
substantive proceedings it may be advised to bring or to defend; it does not
convert a name that offends section 11 into one that complies.
17. The Respondent’s evidence of widespread third-party use of the letters “APS”
on the CIPC register, and of the existence of an unrelated solar enterprise
using that acronym, was directed in substance at the strength and validity of
the Applicant’s registration. Whatever force those matters might carry in
expungement or rectification proceedings, the Tribunal cannot go behind the
Register: the mark is registered, and the enquiry proceeds on that footing.
18. It was argued, with reference to the decision in Mondi , that the Tribunal is
nonetheless obliged to have regard to the Trade Marks Act in adjudicating an
objection of this kind, and that to do so requires the substantive defences for
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which that Act provides to be weighed in the balance. The premise may be
accepted, but the conclusion does not follow . Section 11 itself directs
attention to the Trade Marks Act, for the standard it lays down is defined by
reference to a registered trade mark and to a mark for which application has
been filed. To that extent the Act is not merely relevant but incorporated, and
the Tribunal must consult it. But the matters so incorporated are the existence
and ambit of the mark and the comparison the section requires; they do not
extend to the defences or remedies established by the Act. To have regard to
the Trade Marks Act, in the sense section 11 contemplates, is to consult it for
the content of the comparison; it is not to try an action for infringement under
it.
19. The distinction is one of function rather than of mere forum:
19.1. The defences of vested rights, bona fide own-name use and honest
concurrent use operate to qualify or to defeat a proprietor’s right to
restrain the use of a mark; they presuppose, and answer, the question
whether use already found to be infringing should nonetheless be
permitted. The are essentially carve-outs where infringement exists.
19.2. Section 11 poses an anterior and different question, which is whether a
name conforms to a statutory standard of registrability, and it attaches
no consequence to the considerations of relative bona fides and priority
upon which those defences turn. It also does not deal with, nor does it
mention, trade mark infringement.
19.3. The narrow reference to the Trade Marks Act cannot, therefore, be
construed as an invitation to read into the section defences that the
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section itself does not mention, and which presuppose an enquiry that
the section does not undertake.
APPLICATION OF SECTION 11(2) TO THE RESPONDENT’S NAME
Meaning of “the same as”
20. In relation to the question of whether the Applicant’s mark and the
Respondent’s name are contrary to section 11(2)(a) in that they are the same,
I have some difficulty in accepting the interpretation of the words “same” that
would be required. For the Applicant to succeed on this basis, it would
effectively have to establish that the “SADC” element performs no material
distinguishing function.
21. For the purposes of assessing this aspect of the matter, it will be assumed –
but not accepted – that “SADC” is no more than a geographical indicator, in
the same way that “(Pty) Ltd” indicates the form of enterprise. On that
assumption, there is a cogent argument that the two are, in substance, the
same. I can see no reason, however, why the concepts of sameness and
confusing similarity should overlap when they do not , in fact, mean the same
thing.
22. In my view, the two should be treated as distinct, because w hilst a name that
is the same as another will inherently be confusingly similar to it, the converse
does not follow. The inclusion of both concepts in section 11 is therefore
readily explicable: the prohibition against names that are “the same as”
prevents a name from escaping scrutiny merely because it is identical rather
than only similar. A literal reading gives effect to that distinction.
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23. It is therefore not accepted that the two are the same, but this is not sufficient
on its own to defeat the Applicant’s case, as already explained: the Applicant
need only establish one of the disqualifying criteria specified in section 11(2) in
order to succeed.
Similarity and Mistaken Association
24. With regard to establishing a confusing similarity and the likelihood of
confusion for the purposes of section 11(2)( b), and whether the name is such
as would reasonably mislead a person into inferring an incorrect associa tion
for the purposes of section 11(2)( c), the considerations informing both
inquiries are largely the same. The separate formulations in the parties’
argument will, therefore, not be treated as distinct inquiries for the present
purposes; what follows is a comparison of the Applicant’s mark, and the
Respondent’s name in the light of the applicable legal principles and the
parties’ submissions, undertaken to establish whether the Respondent’s name
falls foul of either of those negative requirements.
25. A name is confusingly similar to a mark if its resemblance to the mark gives
rise to a reasonable likelihood that a substantial number of ordinary members
of the relevant public will be deceived or confused. The test, as both parties
accepted, is the global assessment described in Cowbell (supra), which has
regard to the visual, aural and conceptual impressions conveyed by the
competing names, and which is conducted from the standpoint of the ordinary
consumer of the goods or services in question. The names must be
compared as wholes, but a global comparison does not require that each
element be accorded equal weight; the impression created by a composite
name is frequently dominated by one of its components.
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Submissions Bearing on Similarity and Mistaken Association
26. Mr Dixon submitted that “APS” is the dominant feature of the Respondent’s
name, and that the public characteristically identifies a business by its
dominant or leading element (S tandard Bank of South Africa Ltd v United
Bank Ltd 1991 (4) SA 780 (T)) ; that the element “SADC” is a geographical
descriptor which does not serve to distinguish, and which ( on the authority of
Century City Apartments Property Services CC v Century City Property
Owners’ Association 2010 (3) SA 1 (SCA)) cannot cure a resemblance
founded upon an identical dominant component ; and that the comparison
must be conducted in the context of the specific industry in which the parties
operate and of the ordinary consumer of those particular goods or services.
27. The Applicant invoked Lucky Star Ltd v Lucky Brands (Pty) Ltd 2014 BIP 381
(WCC) for the proposition that similarity is not assessed in the abstract but
against the specific market and its ordinary consumer, with the consequence
that where the parties trade in the same sector and region the threshold for
confusion is correspondingly lowered.
28. In opposition to this line of argument, Mr Metcalfe submitted that “APS” is an
inherently weak element, being a three- letter acronym unconnected to the
Applicant’s registered name and shared by a large number of unrelated
entities. Support for this contention can be found in the Respondent’s
answering affidavit , which records that a search of the companies register
reflects more than two hundred names incorporating “APS”, including at least
one enterprise in the solar sector.
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29. It was argued, with reference to Lucky Star (supra) that where the distinctive
content of a mark is slight, similarity in the field of activity will not by itself
establish a likelihood of confusion. Mr Metcalfe also pointed to the differences
in get -up (contrasting fonts, lettering and logos employed by the parties ) as
displacing any visual confusion, and submitted that the Applicant had adduced
no evidence of actual confusion.
Discussion
30. The Respondent's strongest point is that “APS” is a weak, widely -shared
acronym entitled to narrower protection. That may be accepted, but it does
not assist the Respondent in that the dilution relied upon is among businesses
in unrelated fields, which does not weaken the mark within the solar and
power market in which both parties in fact trade; and the mark is taken as it
stands upon the register. Lucky Star , cited by both sides , confirms that
similarity is judged in the context of the specific industry and its ordinary
consumer. The Supreme Court of Appeal has held similarly that “ [t]he marks
must be viewed as they would be encountered in the marketplace and against
the background of relevant surrounding circumstances” (Plascon-Evans Paints
(Pty) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 641).
31. The likelihood of confusion in the market in which the parties operate is not
negated by the existence of unrelated traders using the same or similar mark
in different fields of activity where no realistic possibility of confusion arises.
Thus, the fact that the acronym “ APS” may be used by unrelated entities in
other industries does not diminish the likelihood of confusion between parties
using it in relation to the same or closely related services.
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32. The names share, as their dominant and memorable feature, the identical
element “APS”, which on the Standard Bank principle is the element by which
the ordinary consumer will identify and recall the business. The additional
element “SADC” does not distinguish the Respondent’s name but, being a
familiar regional descriptor, tends if anything to reinforce the impression of a
connected undertaking operating across the region; on the Century City
approach, a descriptor of that kind cannot cure a resemblance founded upon
an identical dominant component.
33. As to the evidence relating to the branding and trading names, such as the
use of “APS Solar” and “APS Ardent Solar” on signage and vehicles , the
Tribunal has confined its attention to the registered name. The manner in
which the Respondent presents itself in commerce may be of relevance to a
complaint of passing- off in another forum, but the object of the section 11
enquiry is the registered name, and the Tribunal’s conclusion rests upon the
comparison of that name with the registered mark, and not upon the
Respondent’s trading styles. As far as evidence of actual instances of
confusion is concerned, although this might be a relevant consideration, there
is no requirement that the Applicant establish actual confusion to succeed.
34. Considering the Applicant’s mark as it stands , and conducting the global
comparison that the authorities require, restricted to the single market (the
solar and power-solutions sector in the same region) in which both parties are
shown to operate, and in which the threshold for confusion is correspondingly
reduced, the mark “APS” and the name “APS SADC” convey the same
commercial origin, and the likelihood of deception or confusion is, in my view,
established.
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35. Having found the Respondent’s name to be confusingly similar to the
Applicant’s registered mark within the meaning of section 11(2)( b), in the
circumstances, and for the reasons just described, it would seem to follow that
section 11(2)( c) is also contravened in that the use of a name confusingly
similar to a mark used in the same market, with the only distinguishing
element being a geographical indicator appearing after the mark, would almost
certainly also imply some association between the parties.
THE SETTLEMENT CORRESPONDENCE AND COSTS
36. The Applicant placed before the Tribunal a settlement offer in which the
Respondent had indicated a willingness to change its name upon payment of
a sum of R65 000, and submitted that the offer amounted to a tacit admission
that the name is problematic, and an attempt to hold the Applicant’s rights to
ransom. The Respondent explained that the offer was made without any
admission of liability, in a bona fide attempt to curtail the costs of litigation.
37. The Tribunal does not treat the offer as an admission. The question whether
the Respondent’s name complies with section 11 is one to be determined
upon the Tribunal’s own assessment of the name against the mark and the
applicable law, and not upon any concession, express or implied, that the
parties may have made in the course of seeking to compromise the dispute.
The offer has accordingly been left out of account in the determination of the
merits.
38. The Applicant asked for costs on a punitive scale, founding that submission in
part upon the inference it sought to have the Tribunal draw from the settlement
offer, and t he Respondent submitted that no order as to costs should be
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made, even in the event that it was unsuccessful, emphasising that it had
adopted and used its name in good faith, had traded under it for a number of
years, had advanced its defence responsibly, and had sought to resolve the
matter by agreement.
39. The Tribunal is not persuaded that a punitive order is warranted. The making
of a settlement offer, including one that proposes a payment towards the costs
of a name change, is a legitimate incident of litigation, and is at least as
consistent with a bona fide desire to curtail expense as with any improper
motive. The Tribunal is unable, on the material before it, to characterise the
offer as an abuse, and it follows that the offer affords no foundation for a
special order as to costs.
40. The matter being one in which the Respondent advanced an arguable defence
in good faith, the Tribunal considers that the just order is that each party
should bear its own costs. There will accordingly be no order as to costs.
ORDER
41. In the result, I make the following order:
(a) It is determined that the name “APS SADC (Pty) Ltd” does not satisfy the
requirements of section 11(2)(b)(iii) of the Companies Act 71 of 2008.
(b) The First Respondent is directed to:
(i) change its name to one which does not incorporate the element
“APS” or any confusingly similar mark, and
(ii) file a notice of amendment to its Memorandum of Incorporation
within 3 (three) months of the date of this order.
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(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
3 June 2026