The Appellant, a United Kingdom company, was the proprietor of a registered trademark, "Idem", in respect of carbonless copying paper. This was referred to as the primary use of the mark. As a secondary use, the Appellant used the mark on products that were not sold, but used for promotional purposes, like address books and notepads. The Respondent held the same registered trademark in respect of stamps, photographs, writing and drawing instruments. In 1997, the Appellant issued summons against the Respondent claiming an interdict and royalties for infringement of section 34 of the Trade Marks Act 194 of 1993 ("the Act"). Arguing that the Appellant's use of the trademark did not constitute bona fide use of the mark; the Respondent launched its own application for the expungement thereof in terms of section 27 of the Act. The court a quo granted the Respondent's application, and the Appellant now appeals against the expungement order.
The Court found that the Act conferred upon it a discretion to refuse expungement, such discretion to be exercised only in exceptional circumstances. Once a trademark proprietor proved relevant use within a subsection of a category, removal of the mark will not be granted unless evident that the expungement described a commercially coherent category of goods within the existing specification.The appeal was therefore upheld.