Adcock Ingram Intellectual Property (Pty) Ltd and another v Cipla Medpro (Pty) Ltd and another [2012

The Appellant was the registered proprietor of two trademarks. In 1994, the Appellant applied, in terms of section 34 of the Trade Marks Act, to introduce amendments so that the trademarks could be depicted with more clarity. The Respondent opposed the application claiming that (i) the registration was invalid, (ii) the proposed amendment substantially affected the identity of the trademarks and therefore contravened the provisions of section 34 of the Act, as well as section 10(2). The Appellant denied the same and submitted that the amendment sought was required to clarify the registration, did not conflict with other existing trademarks and also did not broaden or extend its rights. The Registrar of Trade Marks refused the application on the basis that the representation as sought to be amended, introduced material alterations which substantially affected the identity of the trademark. The Appellant appealed against the decision.

The Court held, after analysing drawings of the representation submitted by the Appellant, that the arresting features as displayed in the original registration had been retained. In addition, the identity of the trademarks had not been substantially affected within the meaning of section 34 of the Act. The appeal was accordingly upheld.

The second respondent is directed to remove trade mark 2004/05322 ZEMAX in class 5 from the register of trade marks in respect of the goods for which it is registered

The first respondent is ordered to pay the costs of the application

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