Firstly, a person may conduct business under his/her full name, as disclosed in his/her identity document, in the case of an individual, or, in the case of a juristic person, if it has been registered in terms of a 'public regulation.'
The second situation is where a business name is registered in terms of the Consumer Protection Act, or any other public regulation. The term 'public regulation' includes national legislation and probably refers to legislation such as the Companies Act. The term 'business name' refers to a name under which a person carries on business (other than the person's full name) and specifically relates to the registration of a business name 'for the use' thereof. This raises the question of the treatment of 'trading as' entities.
Section 79(1) of the Act indicates, as far as corporate entities are concerned, that one may trade under (a) one's registered company name (eg XYZ Franchises (Pty) Ltd) or (b) another registered business name. In the 'trading as...' case, one seems to be working with a 'business name.'
It should be borne in mind that there is no general restriction on the use of the phrase 'trading as...', assuming of course that the name following the phrase 'trading as' is duly registered in terms of the Act. For example, to comply with the Act, an entity may conduct business in the name of 'XYZ Franchises (Pty) Ltd', its registered company name. If such registration has taken place, one then deals with a registration that exists under a 'public regulation', as described above.
However, where the company conducts business under a different name, such name must be registered. In other words, where XYZ Franchises (Pty) Ltd is active in the market as 'XYZ Franchises (Pty) Ltd trading as Popcorn Den', then 'Popcorn Den' must be considered for registration as the business name of XYZ Franchises (Pty) Ltd. In this way, there is transparency from the point of view of the consumer, in line with his right to have information about traders.
The right to information is a specific objective of the Act. However, this does create a potential difficulty, as the trading name used by the franchisee is probably the registered trademark of the franchisor.
The position regarding the use of one's own name is that if a natural person is involved, registration would not be necessary if the person's full names are used.
This could apply, depending on the facts, to partnerships as well. Incidentally, the use of a person's name, if it is bona fide and consistent with fair practice, could also constitute an exemption from infringement in terms of the Trade Marks Act.
It is said that one has a right to use one's own name to conduct trade - subject, however, to the condition that the use must be bona fide and must not result in confusion or deception amongst consumers.
What does the term 'full name' mean? In South African Breweries v Namibia Breweries, it was held that it is sufficient if the name 'Hansa Brauerei' is used, instead of Hansa Brauerei Limited.
Another decision of interest is Chickenland (Pty) Ltd v FA Bras t/a Fernando's Chicken House & Taverna. Here a person relied on the fact that his first or Christian name was Fernando. The court held that a first name was not sufficient to qualify for protection; that a surname would have to be added.
If business is conducted under any other name than those set out above, the National Consumer Commission may issue a compliance notice to the effect that business must be discontinued under that name.
The Act's business names provisions will become effective on a date yet to be proclaimed, though not earlier than October 2011.
Meropa Communications
Contact: Charlene Hawkes; 011 506 7313; 082 569 7873; charleneh@meropa.co.za
Grace Belger; 011 506 7300; 082 330 3074; graceb@meropa.co.za
John Spira; 011 506 7300; 082 783 5910; johns@meropa.co.za
