Bayer Intellectual Property GMBH v Austell Pharmaceuticals Proprietary Limited and Another (020175/2023) [2024] ZAGPPHC 1106 (22 October 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1106 | Noteup | LawCite sino index ## Bayer Intellectual Property GMBH v Austell Pharmaceuticals Proprietary Limited and Another (020175/2023) [2024] ZAGPPHC 1106 (22 October 2024) Bayer Intellectual Property GMBH v Austell Pharmaceuticals Proprietary Limited and Another (020175/2023) [2024] ZAGPPHC 1106 (22 October 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1106.html sino date 22 October 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 020175/2023 1. REPORTABLE: YES /NO 2. OF INTEREST TO OTHER JUDGES: YES /NO 3. REVISED: YES /NO DATE: 22 October 2024 SIGNATURE OF JUDGE: In the matter between: BAYER INTELLECTUAL PROPERTY GMBH                                      APPLICANT And AUSTELL PHARMACEUTICALS                                         FIRST RESPONDENT PROPRIETARY LIMITED REGISTRAR OF TRADE MARKS                                    SECOND RESPONDENT JUDGEMENT [1]      The First Respondent herein has applied for Leave to Appeal to The Supreme Court of Appeal against the judgment handed down by this Court on 11 June 2024. [2]      For ease of reference, the parties are referred to as in the main Application. [3]      Full reasons were provided in the Judgement that I compiled on 19 July 2024 and I do not propose to furnish further reasons, the First Respondent in its Leave to Appeal argued on 12 September 2024, not substantively advancing its propositions further. [4]      Sec 17 (1) of the Superior Court Act No 10 of 2023 ("The Act") provides: "Leave to Appeal may only be given where the judges concerned are of the opinion that: (i)       The Appeal would have a reasonable prospect of success; or (ii)      There is some compelling reason why the Appeal should be heard, including conflicting judgements on the matter under consideration". [5]      Sec 17(1)(a) of the Act provides a stringent test wherein the Court must be satisfied that the Appeal would have a reasonable prospect of success. (See Mont Chevaux Trust (IT2012/28) v Tine Goosen. Unreported, LCC Case No LCC 14R/2014, dated 3 November 2014, Notshokovu v S, unreported, SCA Case N0 157/15 dated 07 September 2016 and Erasmus Superior Court Practice. DE Van Loggenberg, Vol Part A, R512, 2020 A2-55. [6]      In my opinion the First Respondent has not met this threshold. [7]      Further, there are no conflicting judgments which would have to be considered by the Superior Court of Appeal in terms of Sec (17(1)(a)(ii) of The Act and the public interest will not be served by an Appeal in respect of which there is no legal uncertainty. [8]      In the circumstances, I am not persuaded that another Court will come to a different conclusion. The First Respondent's grounds of appeal and reasons therefor do not justify Leave to Appeal being granted and there is no compelling reasons to grant leave in terms of Sec 17(1)(a) of the Act. ORDER Having read the papers and heard counsel, it is ordered that: 1        The Leave to Appeal launched at the instance of the First Respondent be hereby denied and dismissed. 2. The First Respondent is directed to pay the costs of this Leave to Appeal Application, including the costs of two counsel with such costs accordance with Scale B vis-a-vis junior counsel's fees and Scale C vis-a-vis lead counsel's fees per Rule 69(7) of the Uniform Rules of Court. JOHN RICHARD MEADEN ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA This Judgment was handed down electronically by circulation to the parties' and or parties' representatives by email and by being uploaded to Caselines. The date and time for the hand down is deemed to be 10h00 on this 22 nd th day of October 2024 Appearances For Applicant / Adv G Marriott / Adv Moshiane Instructed by: Adams & Adams For First Respondent Adv Michau SC Instructed by: Bouwers Inc Date of Hearing: 12 September 2024 Date of Judgment 21 October 2024 sino noindex make_database footer start