As online consumer confidence grows in South Africa, the online market is becoming an increasingly attractive space for counterfeiters and fraudsters. Counterfeiting not only affects consumers and brand owners, but can also weaken a country's economy and impact its ability to attract foreign investment. However, consumers have the antidote to counterfeiting and, as such, must make sure to use it.
In recent years, the South African craft beer industry has grown rapidly. Larger commercial beer companies have been heavily affected by this shift in the market and have thus started to acquire craft breweries. In order to prevent the term 'craft beer' from becoming diluted in the near future, many remaining craft breweries feel that the market should be completely transparent. As such, it is surely only a matter of time before South Africa adopts a certification process to protect the nature of 'true' craft beer.
In order to protect trade secrets, companies should, among other things, require that anyone exposed to trade secrets sign a non-disclosure agreement. Where this party is an employee, a restraint of trade agreement may also be used. However, the courts are reluctant to enforce excessively onerous restraint of trade agreements, as these restrict employees' rights to practise their trade and make a living.
South Africa has an abundance of natural resources and, as a result, a large proportion of patent applications are filed covering a process or apparatus used in the production of a product. In terms of patent law, there is no substantive difference between the patentability requirements for a patent for a product or a patent for a process. However, there are important differences between product and process patents when it comes to enforcement.
Micro-organisms are fast becoming a focus area in South African patent practice. The reason for this is not based on a resurgence of the amount of biological inventions relating to the use of micro-organisms, but rather the complex legislative framework that must be negotiated in order to ensure the validity of a South African patent based on micro-organisms indigenous to the country.
Registered trademarks have often been considered the only way to protect logos. However, since the inclusion of Class 32 in Schedule 3 of the Design Regulations, logos are increasingly being protected as both trademarks and registered designs. The protection afforded by each is different, but not contradicting, and registering a logo as a design right can have many advantages.
One of the downfalls of parallel importation is that owners and manufacturers do not have proper control over what the parallel importer does with the brand and product. This therefore raises the question of whether parallel importation is lawful in South Africa. Case law suggests that imports which have been altered could constitute trademark infringement and, by extension, counterfeit products.
The almost infinite nature of trademarks is the reason why iconic characters, such as Batman and Wonder Woman, will almost certainly never enter the public domain. A trademark registration gives the rights holder the exclusive right to use the trademark and prevents the unauthorised use by a third party of not only an identical or confusingly similar trademark, but also a company, close corporation, business, trading or domain name.
The Liquor Products Act, which governs and regulates the labelling of wine products, includes specific regulations and a labelling guide which prescribe what can be incorporated on a wine label. Trademarks constitute the name of a product and are therefore subject to Section 12 of the act. As such, the name of the wine or the trademark must not be misleading. How this is applied and enforced in practice may be tricky, as many wines have interesting names.
The Copyright Amendment Bill was first published for public comment in 2015 and was predominantly met with a large amount of criticism. Two years later, a revised bill has been tabled in Parliament. While a number of previous issues have been addressed, the bill's drafters have retained and even created a number of new problems, which must be addressed before the bill is suitable for adoption.
The manufacturer of a new craft beer may use an interesting name and a creative logo, but does this mean that its brand is protected? If the manufacturer does not protect its brand, another party will likely try to obtain the IP rights – especially if the brand increases in popularity. A clash will undoubtedly result, which could be avoided by the manufacturer securing trademark protection for its product name and logo in good time.
It is safe to assume that almost everyone in the world knows that Ivanka Trump is the name of US President Donald Trump's daughter. Following reports that a number of companies have filed applications to register the trademark IVANKA, the question has arisen as to whether there is any legal provision preventing such a registration. On the face of it, there is nothing to prevent a third party from doing so in South Africa, even though Trump herself is using and has registered the name elsewhere.
Patent attorneys are frequently confronted with inventors who believe that they have created a viable perpetual motion machine, none of which have thus far succeeded in disproving the laws of thermodynamics. Section 36 of the Patents Act (57/1978) provides for this eventuality, stating that the registrar will refuse any application that is frivolous on the basis of it claiming as an invention "anything obviously contrary to well established natural laws".
In order for a trademark to be registrable under the Trademark Act, it must be capable of distinguishing the goods or services of the party in respect of which it is registered or proposed to be registered from the goods or services of another. If it loses this ability or function, it can no longer act as a trademark. As such, trademark owners must strive to save their trademark from 'genericide' – that is, from becoming generic and losing all rights that may have been developed at great cost and effort.
Scientists and patent lawyers have long disagreed over whether DNA is a patentable invention or a mere discovery. The Patents Act states that a patent shall not be granted "for any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological process or the product of such a process". However, there is no significant South African case law that facilitates an understanding of this provision or directly addresses DNA patenting.
The Supreme Court of Appeal recently found that Cipla Vet (Pty) Ltd had infringed the patent for Frontline Plus – an anti-parasitic treatment for domestic animals. Cipla relied heavily on its expert witness, who professed that the effect of the interchangeable roles of the constituent elements of the claimed anti-parasitic formulation were confusing. However, the court disagreed and held that the dual functions of the constituent elements of the patent claim did not affect its clarity.
An individual may file a trademark in his or her own name, as opposed to in the name of a company. In such cases, the asset should – as is the case with immovable or movable property – be specified in the individual's will and appropriately bequeathed to a nominated third party. This will ensure streamlined succession planning, particularly where the trademark is a core asset of the business and its affiliated brand value.
While dealing with multiple infringers on social media may make rights holders feel hopeless or angry, a player that simply lies down or attacks without strategising will rarely win a game of dodgeball. The best tool for enforcing a trademark right on social media is a registration certificate or at least proof of a pending application. However, a registration certificate is not always enough and may even be unhelpful.
A licence under a patent may be defined as a negative covenant not to sue for infringement. A patent licence is thus one way of avoiding a suit for infringement. If a patent holder refuses to grant a licence to a generic company on reasonable terms, the generic company can apply for a compulsory licence according to the Patents Act, provided that certain prescribed provisions are met.
The protection and commercialisation of genetic resources, indigenous knowledge and indigenous cultural expressions have come to the fore internationally during the past 20 or so years. South Africa has responded by publishing the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill 2016, which seeks to introduce a sui generis approach to the legislative protection and commercialisation of indigenous knowledge systems.