TCP wins antiseptic trademark war

Sandton pharmaceutical company Tritof Enterprises has lost its legal bid to have the iconic TCP antiseptic product expunged from the South African register of trademarks.

Tritof, which developed a liquid disinfectant known as 3CP after TCP disappeared from the local market in 2004, is embroiled in a fierce legal battle with the owners of the TCP trademark, Omega Innovation, which wants to remove 3CP from the register and stop Tritof from allegedly infringing its rights.

Tritof asked the court not only to expunge the TCP trademark from the South African register for nonuse, but also wanted the court to rectify the register to reflect the previous owners of the trademark, McNeil Healthcare (UK), as the registered owners of the mark.

Tritof based its case for the rectification of the register on a simple typographical error in the number of the trademark when McNeil in 2013 assigned its rights to the Belgian-based Omega Pharma NV, which in turn assigned the rights to Omega Innovation a year later.

McNeil disavowed proprietorship of the TCP trademark and confirmed that the entries in the trademark register were correct. Tritof also insisted that the TCP trademark had not been used in South Africa since 2004 and should, therefore, be expunged from the record.

But Omega said it had re-launched the product on the South African market in 2014 and provided extensive evidence of its advertising, promotions and sales.

Judge Tati Makgoka dismissed Tritof’s application with costs. He said in law, context was everything and the context of the assignment of the trademark and the surrounding circumstances could not be ignored, lest an absurdity resulted.

He said Tritof’s arguments were artificial, disingenuous and opportunistic and there was no room for confusion as the subject matter of the trademark was sufficiently identifiable. – ilsedl@citizen.co.za