Valentino Globe BV vs Phillips & another 1998 (3) SA 775 (SCA)
30/01/1998

In this case, however, it was held that, if the trade mark application relied on was without substance or for some reason invalid, that application does not qualify as a person aggrieved.

The applicant for expungement (the respondent in the case) had applied for the expungement of the trade mark VALENTINO on the basis on non-use for a period of five years. The Appellant argued that the Respondent had no locus standi, as he was not a "person aggrieved" as required by the Act. The evidence before the Court that, whereas the Respondent was a party to the current proceedings, it had no bona fide intention to use the mark as was in fact not using the mark at the moment in time. All use of the trade mark VALENTINO had been by a close corporation and a company of which the Respondent was a member and a director receptively. There had been no licence or registered user agreements entered into between the Respondent and his close corporation and company and the relation ship between them had been unidentified.

The Court held that the old act did not allow the piercing the corporate veil in this manner and that the use of the trade mark VALENTINO by the close corporation and company respectively could not be said to be used by the Respondent. Accordingly, the Respondent had no prospect of its trade mark application succeeding and was therefore not a person aggrieved.

The court held that the old Act did not allow the piercing of corporate veil in this manner and that the use of the trade mark VALENTINO by the close corporation and company respectively could not be said to be said to be use by the Respondent. Accordingly, the Respondent had no prospect of its trade mark application succeeding and was therefore not a person aggrieved.

This case was important as it defined the concept of "person aggrieved" under the sold Trade Marks Act. Its is however, important to take note that the provisions of the Trade Marks Act of 1993 has widened the definition of "permitted use" and now includes a licensee which has not been entered on the register as a registered user.