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PLATINUM LIFESTYLE CC t/a BODY DETOX20 LYNBURN RDLYNWOOD MANORPRETORIA
URGENT - CEASE AND DESIST
SOUTH AFRICA: TRADE MARK APPLICATIONS IN THE NAME OF PLATINUM LIFESTYLE
PRODUCTS - POTENTIAL OPPOSITION TO BE LAUNCHED BY ABSOLUTE ORGANIX CC
AND RELATED CLAIM BASED ON UNLAWFUL COMPETITION
We act for Absolute Organix CC (hereon referred to as our client), the proprietor ofthe LIFEMATRIX brand, filed under trade mark application no. 2011/27238
in class 5 to cover "nutritional and dietary supplements, vitamins,
vitamin, mineral or energy supplements; herbal preparations
Our client recently received a copy of a letter believed to be widely disseminated by
you to your customers dated 3 June 2013, a copy attached hereto, marked Annexure
, advising that our client is illegally using your product names on its products and
marketing materials. You allege that the following trade marks are "registered trade
names" of Platinum Lifestyle CC and were submitted 4 years ago to CIPRO or CIPC:
DIRECTORS: DB Momberg B A, LL B (Chairman) • NJ Vermaak B Sc(Chem,Phys), LL B • M le Roux B Sc(Mech)Eng, B Proc • AK van der Merwe B Sc(Chem), B Proc, LL B •A Krüger Hons B Eng(Elec), B Proc, LL B • NR Bond B A, LL B • WA van Rooy B Sc(Chem, Biochem), B Proc • V Ferguson B Iuris, LL B •J Stephens B Sc(Biochem, Microbiol), LL B • LL Mc Ilwaine-Hill B Iuris, LL B • K Dam B Com (Law), LL B, Adv Cert Tax, LL M • A Engelbreg B Eng(Electronic), LL B •A Papadopoulos B Com(Law), LL B • M Vally B Sc(Biochem), LL B • U Brunetti B Sc(Hons)(Chem), LL B •L Lowne-Hughes B Com(Law), LL B (Trade Mark Administration Manager)ASSOCIATES: C Kalibbala B Com(Law), LL B, B Com(Hons) (Business Mgmnt) • PJ Theunissen B Sc(Med Sci), LL B • S Cothill LL B • M Coertzen B Eng(Chem), LL B•K Kitchen BCom (Information Systems), LLBATTORNEYS: P Delport LL B • CT Chellan LL B • H Moodley LL B, LLM(Med Law) • R Merry B Sc(Hons) (Micro,Biotech) LL B • M Heathcote BCom Law, LL B •
C Saggeus LLB • N Kambule LL B • N Mohunlal B Soc Sc, PGCE, LL B • W van der Merwe B Eng(Mech), LL BCONSULTANTS: J Lamprecht B Sc(Hons)(Chem), B Iuris • R le Roux B Sc(Mech)Eng, B Iuris, LL BPATENT ADMINISTRATION MANAGER: PJ WepenerPRACTICE MANAGER: HC Botha BCOMPT (UNISA), Professional Accountant (SA), MDP (SBL UNISA)REG NO: 1979/000871/21
Our search of the Trade Marks' Register has revealed that you are the proprietor of thelogo
trade marks attached hereto as Annexure B
which are notably not
trade marks and were not submitted 4 years ago to CIPRO. All of the trade mark
applications attached hereto under Annexure B were only filed in 2012 and only some
have recently proceeded through to acceptance, and we can confirm that registration
of them will be opposed by our client (on the grounds more fully set out in point 7
below) when they are advertised. Therefore, you are making false claims in your 3
June 2013 letter when you state that the words cited under point 2 above constitute
"registered trade names".
Furthermore, many of the above elements to which you claim exclusive rights i.e. theword "magnesium" and the combination of the words "dead sea" have notably beendisclaimed on the Trade Marks' Register. The effect of a disclaimer is that you do nothave exclusive rights to the use and registration of such words, to the exclusion of allothers, as such words are deemed common in the class to which such marks relate i.e.
class 5 in this instance.
The rights you have obtained in your trade marks, if any, are limited to the compositelogo
marks that you have applied for which incorporate in most instances your house
mark i.e. BODY DETOX in logo format, the slogan "treating the cause of disease not
just the symptoms - 100% natural", and then a combination of variable words which
include, for example, the disclaimed word "magnesium". Therefore, it is incorrect to
say that you are the proprietor of "registered" word marks of the kind cited in point 2
above, as such words are merely elements of your composite logo
We note further that in terms of the attached ASA ruling dated 19 March 2013,
marked Annexure C
herein, that you have in the past violated Clause 10 of Section II
of the Advertising Standards Code by including testimonials that essentially confused
the role that magnesium plays when ingested by humans in a print advertisement
appearing in the Vrouekeu Magazine during November 2012. The testimonials were
proved to not be authentic by the ASA Directorate as you were not able to furnish any
evidence on the authenticity of same (and the testimonials essentially amounted to
misleading and unsubstantiated claims).
It has also come to our client's attention that you have contacted some of our client's
customers requesting that they remove our client's products from their shelves on the
basis that our client's product incorporates your client's registered trade marks. Such
action constitutes unlawful competition in terms of the common law in that you are
making a false misrepresentation to our client's customers that is calculated to injure
the business and goodwill relating to our client's LIFEMATRIX Magnesium Oil brand (a
picture of same attached hereto marked Annexure D
Our client has instructed that we demand that by no later than the close of business
on Friday 14 June 2013
you furnish a formal written apology to our client retracting
your threat included in your 3 June 2013 letter and advising that you made false claims
concerning your apparent exclusive rights in and to all of the words cited in point 2
above, and that you are in fact not the proprietor of any registered trade marks that
incorporate such words, and therefore have no legal right to attempt to have any
goods confiscated that incorporate such words which are deemed to be in common
use in the trade.
If you do not adhere to our client's demands above, it reserves the right to instituteproceedings against you, without further notice, in which it will seek an interdict restraining you from making the aforesaid false claims, and on the basis of themunlawfully competing with our client, and interfering in its relations with its customers,together with an order for an enquiry into the damages our client has sustained as aresult of your aforesaid unlawful actions.
Our client intends opposing each of your trade mark applications included underAnnexure B as and when they are advertised on the following grounds:
that the alleged proprietor of the applications is not correctly identified and its legalstatus cannot be ascertained,
that in each case the goods in respect of which registration is sought are incompetently defined and/or it is not clear in respect of what goods are actuallysought to be covered under the applications, and are not goods covered by the International Nice Classification of Goods and Services but consist of therapeutic andchemical claims which have no place under the Trade Marks Act 194 of 1993.
Where the marks themselves are concerned more extensive disclaimers are requiredin order to exclude rights in the relevant descriptive terms featuring in any of theapplications, for example, "magnesium oil", "dead sea crystals" and "dead sea magnesium", as it is not competent to include rights in any descriptive matter under atrade mark registration. We refer you in this regard, in particular, to section 10(2)(a)and (b) of the Trade Marks Act 194 of 1993.
We trust that the above is clear and we look forward to receiving an immediate response herein failing which our client will not hesitate to launch the appropriate legalproceedings against you.
(sent electronically and hence not signed)
D.M. KISCH INC.
Per: DEREK MOMBERG
TM759Assisted by Karen Kitchen
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