Mars Inc Cadbury (Swaziland)(Pty) Limited & another 2000 (4) SA (SCA)
29/02/2000

Section 42 of the old Act provided that, after the expiration of seven years from the date of entry onto the register, that the registration is take to be valid in all respects and that mark could therefore not be attacked on grounds relating to the marks original registration.

No equivalent section to section 42 was enacted in the new Trade Mark Act. However, the Court held that, in view of the provisions of section 70 referred to above, section 42 should be applied in considering the continued validity of a trade mark on the registered, if that mark has/been registered for longer than seven years. In this case, it resulted in the trade mark under attack not being expunged.

The importance of this decision lies in the fact that it provides protection to a trade mark registered in terms of the old Act that is not afforded to trade marks registered under the new 1993 Act.