The recent South African High Court decision in the case
of Howden Africa v CFW Industries is extremely
interesting. Not so much for what it said (it said very little,
comprising no more than two pages of 'Written Reasons'),
but for what it held.
What happened here? A company had a
registration for the trade mark Fumex Fans covering fire extraction
fans. A competitor, who wanted to register a similar trade mark,
Fumax, applied to cancel the registration for Fumex Fans on the
basis of five years' non-use. The trade mark owner responded by
filing an affidavit, in which it said that it had used the trade
mark during the relevant period. The only actual evidence it
submitted, however, was a brochure that showed that it sold a wide
range of fans under the trade mark CFW, and that the various fans
were identified by descriptive terms. One of these fans, which
appeared on a page entitled 'Axial Fans', was described as
follows: 'Smoke Venting Fan (Fumex)'. The court had
