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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case no.: CT02682ADJ2026
In the matter between:
LEGATUM LIMITED Applicant
and
LEGATUM ADVISORY SOLUTIONS (PTY) LTD First Respondent
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
Second Respondent
Presiding member:
Date of decision:
Richard Bradstreet
3 June 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 Applicant’s objection is its rights in the well-known LEGATUM
trade mark, of which it is the registered proprietor in South Africa in classes 35
and 41. Although the Applicant is a company incorporated in the United Arab
Emirates, that is immaterial to the present enquiry: section 11 looks to the
registered mark itself, and the foreign domicile of its proprietor has no bearing
on the comparison.
3. The Applicant contends that the First Respondent ’s name incorporates the
LEGATUM mark in its entirety, as its dominant element, and that such use is
unauthorised. On that basis it submits that the name is the same as,
alternatively confusingly similar to, its registered LEGATUM trade mark, and
that it is likely to mislead members of the public into believing that the First
Respondent is associated with, or forms part of, the Applicant ’s business –
contrary to sections 11(2)(a), 11(2)(b) and 11(2)(c)(i) of the Act.
4. The application was duly filed with the Companies Tribunal during March 2026
and served on the First Respondent by electronic mail to the email address
which the First Respondent had itself used for the receipt of correspondence
in the course of the parties’ earlier engagement. The First Respondent failed
to file any answering affidavit within the prescribed time period.
5. The Applicant thereafter instituted an application for default judgment in terms
of regulation 153. 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.
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6. The application accordingly now falls to be determined on a default basis, and
it is therefore necessary to consider whether the Applicant has made out a
case for the relief sought.
APPLICABLE LEGAL FRAMEWORK
7. 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.
8. Section 11(2) of the Act provides, inter alia, that a company name must not:
8.1. be the same as a registered trade mark belonging to another person;
8.2. be confusingly similar to such a trade mark; or
8.3. 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
9. “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).
10. Determining whether there is a confusing similarity involves a value judgment
(Cowbell AG v ICS Holdings 2001 (3) SA 941 (SCA) para 10), and
presupposing that the marks are to be used together in a normal and fair
manner, in the ordinary course of business ( SmithKline Beecham Consumer
Brands (Pty) Ltd (formerly known as Beecham South Africa (Pty) Ltd) v
Unilever plc 1995 (2) SA 903 (A) at 912H; cited in Cowbell supra at para 10).
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11. In particular, one must ask whether there is “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 services of one are
those of another or are connected therewith ( Adidas AG & another v Pepkor
Retail Limited 2013 BIP 203 (SCA) para 28; Capital Estate and General
Agencies (Pty) Ltd & others v Holiday Inns Inc & Others 1977 (2) SA 916 (A)
at 929C).
12. One must consider how the two marks will be perceived by 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) bearing in mind that the comparison in the mind of such person will not
be undertaken with the two marks presented side by side, and for this reason
allowance must be made for the ordinary imperfections of human memory (i.e.
the so-called “doctrine of imperfect recollection”; see Ewing t/a The Buttercup
Dairy Company v Buttercup Margarine Company Ltd (1917) 34 RPC 232 at
232 and 238).
ANALYSIS
13. The mark in question is unlike a purely fanciful mark in that legatum is not a
coined or invented word: it is derived from the Latin verb legare (to bequeath),
and means legacy or bequest. That etymology does not, however, assist the
First Respondent in so far as t he distinctiveness of a mark must be assessed
by reference to its significance to the relevant public in the market in which it is
used, and not by reference to its origins in a language no longer in everyday
use. To the ordinary South African consumer of the services in question,
“LEGATUM” is not a familiar word of the English language and conveys no
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descriptive meaning in relation to those services; it presents, rather, as a
distinctive and memorable term.
14. More importantly, it is a term which the Applicant has registered as a trade
mark in classes 35 and 41, and which it has used in South Africa since at least
2007 – most visibly in connection with its LEGATUM Prosperity Index – with
the result that it has come to serve in this country as a badge of origin
denoting the Applicant. In the South African context, therefore, and
irrespective of its ancestry, “LEGATUM” falls to be treated as a distinctive
mark consequently enjoying a strong measure of protection.
15. The comparison to be made must be made against that background. This
involves a value judgment, made on the assumption that each will be used in
a normal and fair manner in the ordinary course of business.
15.1. The First Respondent ’s name, Legatum Advisory Solutions (Pty) Ltd,
takes the Applicant’s mark in its entirety and unaltered, and places it in
the dominant, opening position of the company’s name.
15.2. The words that follow it , “Advisory ” and “Solutions”, are wholly
descriptive of the rendering of advisory or consultancy services and
contribute nothing of distinguishing value; far from displacing the mark,
they read naturally as a description of what the bearer of the mark
does.
15.3. The likeness between the mark and the First Respondent’s name is, in
the result, not merely “ marked”, but exact when considering the
dominant element . That likeness is not dispelled by the descriptive
words appearing after it, particularly bearing in mind that the
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comparison is made not with the names placed side by side, but in the
recollection of the ordinary reasonable careful person, whose
recollection of the first mark encountered may be imperfect.
Considered from a different perspective, if such a person were to first
encounter the First Respondent’s name, the words “Advisory Solutions”
would likely be forgotten, with only the dominant and distinctive element
“LEGATUM” being remembered.
16. It follows that there is a reasonable likelihood that ordinary members of the
public, or a substantial section of them, would be confused or deceived into
believing that the First Respondent is connected with the Applicant when no
such connection exists.
17. The First Respondent’s name is accordingly confusingly similar to the
Applicant’s LEGATUM trade mark, and also falsely implies or suggests an
association with the Applicant. It therefore fails to satisfy the requirements of
both sections 11(2)(b) and 11(2)(c)(i) of the Act.
18. The Applicant also relied upon section 11(2)(a) on the basis that the impugned
name is the same as the Applicant’s mark. That submission raises a question
as to the relationship between the concepts of “ sameness” and “confusing
similarity” as they appear in section 11. The distinction between the two limbs
of section 11(2)( a) and ( b) is obscured if the concepts of sameness and
confusing similarity are treated as though they shaded into one another. In my
view, they should not. Although one may argue that two names are
substantially the same, this inquiry is typically concerned with, inter alia, the
form in which a member of the public perceived two marks . A name is the
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same as a mark only where it is identical to it; a name is confusingly similar
where, without being identical, its resemblance gives rise to a likelihood of
deception or confusion.
19. Whilst a name that is the same as another will necessarily also be confusingly
similar to it, the converse does not hold: similarity short of being identical is the
larger category, within which identity is the limiting case. To treat sameness
as though it were established by a high degree of similarity is therefore to
collapse the lesser test into the greater and to deprive the statutory language
of its evident structure.
20. That the legislature provided for both is, on this analysis, readily explicable
rather than redundant. The prohibition upon names that are the same as a
mark or another name ensures that an identical company name does not
escape scrutiny on the basis that the only standard imposed by the section is
one of similarity; it prevents the argument from being raised that being
identical is something other than similarity, and therefore falls outside the
prohibition. Each limb thus performs distinct work, and a literal reading gives
effect to that division.
COSTS
21. The Applicant has expressly sought costs. The Tribunal’s ordinary practice on
default applications of this kind is to make no order as to costs, particularly
where the First Respondent appears to have adopted the impugned name
without malice and where the matter is determined on an unopposed basis
without the need for a hearing. I am reluctant to award costs in the present
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matter given that the First Respondent has not had any opportunity to make
representations in relation to the issue.
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ORDER
22. In the result, I make the following order:
(a) The application for default relief is granted.
(b) The First Respondent is directed to:
(i) change its name to one which does not incorporate “ LEGATUM”
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
3 June 2026