2 _________________________________________________________________________ ORDER On appeal from: the North Gauteng High Court, Pretoria (Prinsloo J sitting as court of first instance): 1 The appeal is upheld with costs. 2 The order of the court below is set aside and replaced with the following order: ‘(a) 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; (b) The first respondent is ordered to pay the costs of the application.’ _________________________________________________________________________ JUDGMENT MALAN JA (Farlam, Nugent and Wallis JJA and Petse AJA concurring): [1] This is an appeal, with the leave of Prinsloo J, against his dismissal with costs of an application by the appellants to remove from the register of trade marks the trade mark ZEMAX with registration number 2004/05322, dated 5 April 2004, in class 5 of Schedule 3 to the regulations under the Trade Marks Act 194 of 1993 (the Act) in respect of – ‘Pharmaceutical and veterinary preparations, sanitary preparations for medical purposes, dietetic substances adapted for medical use, food for babies, plasters, materials for dressings; material for stopping teeth, dental wax, disinfectants; preparations for destroying vermin; fungicides, herbicides.’