South Africa: There's Only One Bloomberg

Last Updated: 29 July 2013
Article by Gaelyn Scott

Most Read Contributor in South Africa, November 2017

Court decisions regarding company names are rare. So the recent decision of the Western Cape High Court in the case of Bloomberg's Posterity Investments (Pty) Ltd v The Registrar of Companies and Bloomberg LLP is worth discussing.  What makes company name cases interesting from an intellectual property (IP) law point of view is that they deal with issues that are very similar to the issues that are dealt with in trade mark infringement and passing-off cases. That's because the law says that a company name will be refused if it is 'undesirable' or 'calculated to cause damage', and this has been interpreted to mean that the name must not cause confusion.

The issue in this case was whether the name Bloomberg's Posterity Investments (Pty) Ltd was undesirable or calculated to cause damage, given the renown of the US company Bloomberg, which is of course involved in various aspects of financial services including software, data services, news, analytics and trading platforms.  The US company has 41 trade mark registrations in South Africa for marks incorporating the name 'Bloomberg' going back as far as 1994, and some 1000 domain names.  It also has a significant commercial  presence in South Africa - with an office in Sandton,  a news bureau in Cape Town, and some 1500 South African subscribers - and it get some 50 000 hits on its website every month from South Africa.

The South African company admitted that the US company was well-known in South Africa, but it argued that it had not sought to pass itself off as being connected with the US company.  It raised a number of points. It said that it was part of a group of companies created by one Israel Lester Joseph (ILJ) Bloomberg, and that by the time Bloomberg's Posterity Investments (Pty) Ltd was registered in 2009 there were already 15 'Bloomberg' companies and close corporations in existence – this, it argued, meant that the group had considerable rights to the Bloomberg name in South Africa, rights which pre-empted the registration in South Africa in 1999 of Bloomberg LLP as an external company. The South African company further argued that as it was a small company registered in Plattekloof in the Western Cape, there would never be any confusion with the US company. It further argued that, although the company's main object was investment services, it in fact only provided such services to companies within the group. And it argued that the word 'Posterity' in the name distinguished it from the US company because it suggested succeeding generations of ILJ Bloomberg.

The court looked at a number of earlier cases. It referred to the well-known  case of Peregrine Group (Pty) Ltd & Others v Peregrine Holdings Ltd & Others 2001 (3) SA 1268 (SCA),  where the judge said this about company name objections : 'In my view it is inappropriate to attempt to circumscribe the circumstances under which the registration of a company name might be found to be undesirable. To do so would negate the very flexibility intended by the legislature by the introduction of the undesirability test in the section and the wide discretion conferred upon the Court to make such order as it deems fit. For the purposes of the present matter, it suffices to say that, where the names of companies are the same or substantially similar and where the likelihood is that members of the public will be confused in their dealings with the competing parties, these are important factors which the Court will take into account when considering whether or not a name is undesirable.'

The court also referred to the recent company name case of  Polaris Capital (Pty) Ltd v The Registrar of Companies & Others 2010 (2) SA 274 (SCA), where the court upheld an objection by a US company called Polaris Capital Management to an application by a South African company to change its name  to Polaris Capital. In this case there was proof that the US company had a reputation in the financial services market in South Africa, and the court held that the South African company's change of name would lead to confusion and that it was therefore undesirable.

The court lastly referred to the well-known passing-off decision of Brian Boswell Circus (Ltd) and Another v Boswell- Wilkie Circus (Pty) Ltd 1985(4) SA 466(A), where this was said: 'A party accused of passing off cannot use a surname that has already acquired a distinctiveness and is universally known in the market without making it clear to the public that he is not the original user of that name in the market.'

The court in the Bloomberg case said that, although the South African company claimed that it only offered services to companies within the group, there was in fact evidence that it had made loans to outsiders, and there was nothing in the company's object that limited it to offering services within the group. The court was also unpersuaded  by the argument that  the word 'Posterity' distinguished the South African company from the US company, because there was no proof that South Africans knew who ILJ Bloomberg was, and that he was not in fact the person behind the US company.

The court went on to say this about the Bloomberg name: 'There can be no question that it has come to bear a secondary meaning in relation to finance and investments.'   It concluded that the name Bloomberg Posterity Investments (Pty) Ltd was likely to cause confusion: 'There can be no quibble with the fact that the words: "Bloomberg's Posterity Investments" describe a financial investment activity... Applicant's concession that second respondent is a more reputed company than it, means that members of the public are more likely to seek out the services of second respondent than that of applicant, given the former's well-known reputation and success in the field of financial matters.' The fact that the US company had not proved any actual confusion did not matter, as this is not a requirement in trade mark infringement cases, and nor should it be in company names cases. It was sufficient that 'it is more probable than not that applicant's name is likely to be confused as an associated company of second respondent.'

The court said that the degree of confusion is a factor to be taken into account in deciding whether or not a company name is undesirable, and that here the degree was likely to be considerable. 'Clearly South Africans use the Internet and have access to second respondent's television channel sufficiently to be familiar with second respondent's products and services. They can accordingly become as confused as any person outside of South Africa could and incorrectly form the belief that applicant is a company associated with second respondent. Given the globalised nature of financial transactions generally, there is clearly opportunity for a strong likelihood of confusion between the two companies.'

The court concluded that the name Bloomberg's Posterity Services (Pty) Ltd was undesirable and calculated to cause confusion. It therefore ordered that it be changed.

In order to avoid this situation, it is prudent to conduct a search of the Trade Marks Office register when registering a company name to confirm that the new company name will not infringe the rights of an earlier trade mark proprietor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions