South Africa Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Ltd 1976 Bata Ltd v Face Fashions CC and another 2001 (1) SA 844 (A) Hollywood Curl (Pty) Ltd and another v Twins Products (Pty) Ltd (1) 1989 Organon Laboratories Ltd v Roche Products (Pty) Ltd 1976 SmithKline Beecham Consumer The Upjohn Company v Merck 1995 (2) SA 903 (A) - F Brands 1987 (Pty) (3) SA 221 (1) SA 530 (T) (1) SA (1) SA 236 (A) 195 (T) Ltd (formerly known as Beecham South Africa (Pty) Ltd v Unilever plc (T) United Kingdom "Bali" Trade Mark [1969] Canon Kabushiki Kaisha RPC 472 (HL) v Metro-Goldwyn-Mayer Inc (formerly Pathé Communications Sabel BV v Puma AG, Rudolf Dassler Sport [1998] Semigres Trade Mark [1979] RPC RPC 199 Corporation) [1999] RPC 117 (ECJ) (ECJ) 330 The Coca-Cola Co of Canada Ld v Pepsi-Cola Co of Canada Ld [1942] RPC 127 (PC) View Parallel Citation Judgment HARMS [1] JA: The appellant applied during device in class 29. Opposition 1988 for the registration of the trade mark Cowbell in conjunction View from the respondent, the owner of a number of section 17(1) of the Trade Marks Act 62 Page 244 of [2001] of trade marks in this class, based principally with Parallel upon a cow Citation the provisions 4 All SA 242 (A) of 1963, led to a finding by the Deputy Registrar in the appellant's favour. This, in turn, gave rise to a successful appeal by the respondent to the Full Court of the Transvaal Provincial Division (per Van Dijkhorst J, Van der Walt and McCreath JJ concurring). Hence the present appeal. [2] The appeal to this Court was ultimately noted without leave having been obtained from either the Full Court or [3] Because of the delay caused by the abortive proceedings the appellant's notice of appeal was lodged out of time and there is before us an application for condonation. Before dealing with it, it is necessary to consider whether leave to appeal is a jurisdictional requirement because although Van der Walt J's judgment is not as such the subject of this appeal, the question remains whether the appeal is properly before us. The Full Court judgment does not bind us. Unfortunately, we did not have the assistance of argument since both parties assumed that the correctness of that judgment could not be raised in this appeal. [4] As mentioned, the application for the registration of the trade mark was launched in terms of the 1963 Act which has since been repealed and superseded by the Trade Marks Act 194 of 1993. The latter provides in section 3(2) that - this Court. Initially, acting on the advice of counsel, the appellant sought leave from the Full Court. The respondent's attitude was that leave was not required. Disagreeing, the appellant proceeded with its application. In the event the Full Court (per Van der Walt J, Van Dijkhorst and Kirk-Cohen JJ concurring) upheld the respondent's point of view and struck the application from the roll with costs. "La]ll applications and proceedings commenced under the repealed Act shall be dealt with in accordance the provisions of that Act as if it had not been repealed." with The question, simply put, is whether appeal proceedings in relation to an application for registration which commenced under the 1963 Act should be dealt with in accordance with the provisions of that Act. Before the Full Court it was argued that applications for leave to appeal are procedural steps which should follow the current state of the law. That argument was based upon a wrong premise. An application for leave to appeal, normally a procedural step, is necessary because leave is a jurisdictional requirement. But jurisdictional requirements can hardly be termed "procedural''’. In any event, although as a general rule procedural steps should follow the current state of the law, that rule has to yield to any contrary intention appearing from the statute in question. In this case it seems to me that the intention of the Legislature was that all applications (including those for registration of trade marks) commenced under the 1963 Act should in all respects be dealt with thereunder. [5] This finding leads to a consideration of whether the appellant required leave to appeal under Section 63 dealt with the matter. Its scheme was as follows. The decision of the Registrar was the 1963 Act.