The parties were in dispute as to the use of the trademark by the first respondent and its companies. The applicant's stance was that the trademark in question was an unregistered one, and accordingly that the purported acquisition of that trademark, separately from the business or goodwill with which it was associated, by the first respondent was not legally possible. Applicant contended further that it had acquired the trademark with the business bought from the first respondent, and that the first respondent did not acquire any rights in respect of the mark. This formed the basis of the argument that the first respondent's registration of the trademarks was contrary to sections 10(3), 10(7) and 10(12) of the Trade Marks Act 194 of 1993; and they should be expunged.
In the application for expungement, the applicant was successful in proving that the first respondent had no bonafide claim to proprietorship of the mark. The application accordingly succeeded.