The Case of Altron Ltd v Tracker (Pty) Ltd

Pretoria High Court, 2026

A trade mark unused for almost ten years might ordinarily be destined for removal. Yet in Altron v Tracker, residual reputation helped keep the registrations alive, highlighting the role of standing and judicial discretion in non-use proceedings and raising a difficult question about how long goodwill should sustain exclusive rights.

The Shelf Life of a Trade Mark

What is the shelf life of a trade mark?

Five years of non-use would ordinarily place a registered trade mark in serious jeopardy. Yet in Altron Ltd v Tracker (Pty) Ltd, the Pretoria High Court was confronted with a trade mark that, despite almost a decade of non-use, remained firmly on the register. The case became a fascinating discussion about standing, residual reputation and the scope of the Court's discretion in non-use cancellation proceedings.

The Dispute in Brief

Tracker owned four registrations for the slogan TAKING BACK TOMORROW in classes 35, 37, 39 and 45. The slogan formed part of a major advertising campaign and featured prominently in Tracker's branding for many years. It was common cause that Tracker had not used the mark since 2016.

Altron wished to adopt the slogan TAKE ON TOMORROW and sought the removal of Tracker's registrations under section 27(1)(b) of the Trade Marks Act on the basis of non-use for a continuous period exceeding five years.

Goodwill Never Dies?

Tracker accepted the non-use but argued that the enquiry did not end there. It relied on the extraordinary success of its campaign, advertising expenditure exceeding R145 million, extensive national television and radio advertising, expert evidence and other circumstances from which continuing recognition and goodwill could, it argued, be inferred. Tracker contended that substantial residual goodwill remained despite the cessation of active use.

The Standing Hurdle

Before considering the merits, the Court examined whether Altron qualified as an "interested person" under section 27(1). The Court undertook a detailed review of the authorities and reaffirmed that an applicant must demonstrate a real commercial interest in the removal of the mark and more than a merely speculative or academic concern.

The Court regarded Altron's positions as mutually destructive and concluded that Altron lacked locus standi.

Residual Reputation Takes Centre Stage

The Court emphasised that goodwill does not necessarily vanish when use ceases. Applying the relevant principles, the Court found that Tracker had established substantial residual reputation, relying on a campaign that had run for approximately nine years, advertising expenditure exceeding R145 million, extensive national exposure and expert evidence to which Altron had not objected.

The Discretionary Safety Net

The judgment emphasises that proof of non-use does not automatically result in expungement. The Court held that it retains a discretion whether to remove a registration, even where the statutory ground for removal has been established, and exercised its discretion against expungement.

Why This Decision Matters

The decision confirms that substantial residual reputation may play a decisive role in the Court's discretionary assessment, even where prolonged non-use is common cause. It highlights the tension between maintaining a register that reflects marks in genuine commercial use and protecting accumulated goodwill.

If goodwill can keep a trade mark alive long after active use has ended, the real challenge is identifying the point at which memory becomes monopoly. After all, a trade mark register is not meant to be a graveyard, but neither is it a place where the dead walk forever.

Source: Adams & Adams (South Africa), 27 August 2026. Original: https://www.adams.africa/amina-suliman/the-trade-mark-that-refused-to-die-deadwood-or-zombie/