Jenni Button restrained from using her own name

• an application by Button seeking the transfer by Jenni Button (Pty) Limited and other entities of 30% of the shares of the company to Button; and
• a counter-application by Jenni Button (Pty) Ltd seeking to restrain Button from using the trade name Jenni Button for the purposes of conducting business within the retail trade, including as part of the domain name 'jennibutton.com'.

"the names of Jenni Button and JB Inc and all goodwill relating thereto, and all trademarks and copyright in or relating to the names Jenni Button and JB Inc which, together, comprise a going concern."

• held that the provisions of agreement relating to the sale of 30% of the interest in Newco was void; and
• refused Button’s claim for the transfer of the shares to herself, with costs.

• Button never disputed the fact that Jenni Button (Pty) Limited had acquired all the goodwill relating to her name, trademarks and copyright. However, she had used the name Jenni Button in trade in several instances in relation to her new clothing business. When challenged, she had given an undertaking to desist from doing so.
• In her answering affidavit in the counter-application, Button sought to qualify her undertaking, taking the position that she could not be prevented from referring to her own name, provided that she did not use the name Jenni Button as a trademark or trading style in South Africa. Button contended that: 
   
  • Jenni Button (Pty) Limited was not entitled to prevent her from using her own name for her clothing designs; and
  • the undertaking she had previously given was done "in the spirit of cooperation and reconciliation".
• Button also sought to rely on the provisions of Section 34(2) of the Trademarks Act, which entitles a person to use his or her own name in trade in good faith.

• use his or her own name in business; and
• sell goods under his or her own name. 

In addition, in view of the fact that Jenni Button (Pty) Limited had acquired the name Jenni Button and the goodwill associated with it, the court had no doubt as a matter of fact that the continued use by Button of her own name in the course of her current business infringed the right to goodwill attaching to the JENNI BUTTON trademark. Therefore, Button was not entitled to make use of her own name in the course of business - at least as long as her business operated in the same field as Jenni Button (Pty) Limited in South Africa.

Finally, as there was undisputed evidence of Button’s use of her name in trade in South Africa (including as part of the domain name 'jennibutton.com'), the court held that Jenni Button (Pty) Limited had established its entitlement to the interdictory relief claimed. Consequently, the court granted the requested order (restricted to South Africa), with costs.