Innscor Africa Limited and Simbisa Brands Limited v Chicken Slice (Private) Limited and Others

The applicants and first respondent operate competing fast food restaurants selling fried chicken and chips. The applicants use the brand name "Chicken Inn" and hold registered Trademark No. 1070/2006. The first respondent's brand name is "Chicken Slice." On 14 March 2019, the applicants filed an urgent chamber application alleging that the first respondent infringed their registered trademark by using the word "luv" and the phrase "I luv it" (which allegedly resembles their registered mark "luv dat chicken"), as well as copying their colour combination (black, orange, yellow, red and white) in advertisements and packaging. The applicants claimed they became aware of the alleged infringement on or around 1 March 2019 through customer complaints on Facebook. The first respondent opposed the application, stating it had used the colour combination since 2010 and the catchphrase "slice...I luv it" since 2017, supported by affidavits from a graphic designer and branch manager. The second and third respondents (Registrar of Trade Marks and Sheriff) were cited in their official capacities and did not oppose.

• Whether the application qualified as urgent
• Whether there was a material dispute of fact requiring oral evidence
• Whether the second applicant had locus standi to sue
• Whether the relief sought was competent
• Whether the applicants sued a non-existent party

The application was dismissed with costs on the basis of the preliminary issues raised by the first respondent.

An application is not urgent merely because it is filed through the urgent chamber book; urgency must be assessed objectively based on when a reasonable person in the applicant's position would have become aware of the complained conduct. A matter that has existed for years (2010/2011/2017) cannot suddenly become urgent in 2019 based on subjective assertions. Proceedings instituted against a non-existent legal entity are null and void ab initio - a summons has legal force only when issued against an existing legal or natural person. Rule 8(C) of the High Court Rules regarding citation by trade name applies only to associations and expressly excludes bodies corporate. Where a material dispute of fact exists in motion proceedings that cannot be resolved on the papers, the proper course is dismissal rather than conducting a trial within an application (which is exceptional). Locus standi requires a direct and substantial interest in the subject matter of the litigation.

The court commented that the procedure adopted in Grandwell Holdings (Pvt) Ltd v Minister of Mines and Mining Development of conducting a "trial within an application" should not be taken as the general rule but rather as an exception applicable only under very exceptional circumstances dictated by the justice of the case. The court noted that encouraging such a procedure would lead parties to bring applications knowing disputes of fact exist in the vain hope that the court would sanction a trial within the application. The court also observed that referring an urgent matter to trial would be "unconscionable" and "more of an academic exercise" than aimed at resolving the applicants' complaint. The court noted but did not decide the merits of the trademark infringement claim regarding the use of the word "luv" and phrase "I luv it," considering this inappropriate to address as a preliminary matter.

This case is significant for establishing important principles regarding: (1) the test for urgency in urgent chamber applications, emphasizing that an objective "reasonable man" standard applies rather than the applicant's subjective perception; (2) the doctrine that proceedings against a non-existent legal entity are null and void ab initio, following the principle in MacFoy v United Africa Co. Ltd that "you cannot put something on nothing"; (3) the proper citation of corporate entities and the inapplicability of Rule 8(C) to corporate bodies; (4) the court's discretion in dealing with material disputes of fact in motion proceedings; and (5) the principle that self-created urgency does not justify urgent chamber applications. The case reinforces procedural discipline in trademark infringement litigation and urgent applications generally.