intellectual property

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A BIT OF “YADDA YADDA” ABOUT INSURANCE-ADVERT - BY DELENE BERTASSO
Tuesday, January 03, 2012
The protection of advertisements and the standards to which they must adhere is governed by the Code of Advertising Practice as enforced by the Advertising Standards of Authority of South Africa. To my mind, the Dial Direct advertisement falls short of the provisions of clause 9 of the Code which provide that: "An advertiser should not copy an existing advertisement, local or international, or any part thereof in a manner that is recognizable or clearly evokes the existing concept and which may result in the likely loss of potential advertising value. This will apply notwithstanding the fact that there is no likelihood of confusion or deception or that the existing concept has not been generally exposed".

ANYONE “AMYING” TO “WINE” ABOUT CYBER SQUATTING - BY ALICIA LOUW
Friday, August 26, 2011
Amy Winehouse was not long gone before the domain names and were registered. Amy Winehouse, I believe most of us know, was a world renowned British singer known for her eclectic music, including “Rehab”. She recently died at a tender 27 years of age.

ARIPO TRADE MARK REGISTRATIONS NOW ALSO ENFORCEABLE IN ZIMBABWE - BY STEPHEN HOLLIS
Thursday, August 18, 2011
Zimbabwe has enacted new trade mark legislation (on 10 September 2010) which gives proper recognition to ARIPO trade mark registrations in Zimbabwe. The African Regional Industrial Property Organization (ARIPO) was founded in 1976 and in 1993 the Administrative Counsel of ARIPO adopted the Banjul Protocol on Trade Marks which provides for the filing of a single trade mark application at the ARIPO office (Harare) which will cover any member state(s) designated by the applicant.

A BIT OF YADDA YADDA ABOUT INSURANCE AD - BY DELENE BERTASSO
Thursday, August 18, 2011
Overcast day…….sandy beach……rolling waves……suited men…… Does the aforementioned call to mind a recent advertisement flighted on National television - Santam’s advertisement featuring increasing doubles of Sir Ben Kingsley advertising insurance services?

DISTINCTIVE TRADE MARKS: A KENYAN PERSPECTIVE - BY JOHN SYEKEI & ANDREW NDIKIMI IN ASSOCIATION WITH BOWMAN GILFILLAN
Thursday, August 11, 2011
The High Court of Kenya, in the recent case of Mathew Ashers Ochieng –vs- Kenya Oil Company Limited & Kobil Petroleum Limited (civil case No. 377 of 2007) has held that descriptive expressions or slogan such as “PROUDLY KENYAN”, which are widely used and familiar within the public domain, should not be registrable as trade marks. In this case, the plaintiff, who had registered the words “PROUDLY KENYAN” (the “Slogan”) as a trade mark, filed an injunctive application to restrain the defendants (Kenya Oil Company Limited and Kobil Petroleum Limited) from inter alia using the Slogan in the course of their trade on the grounds, inter alia, that the plaintiff was the registered proprietor of the Slogan for use in advertising, business management, business administration and office functions under class 35.

INTELLECTUAL PROPERTY AND THE NEW COMPETITION ACT IN KENYA - BY JOHN SYEKEI - COULSON HARNEY IN ASSOCIATION WITH BOWMAN GILFILLAN
Thursday, August 11, 2011
“Future Competition in the World is IP Competition” – Chinese Premier, Wen Jiabao. Kenya’s newly gazetted competition law, cited as the Competition Act Chapter 12 of 2010, laws of Kenya (the “Act”) is yet to be given a commencement date. Once the Act is in force it will repeal the Current Restrictive Trade Practices Monopolies & Price Control Act (the “RPTA Act”).

COUNTERFEITING IS NOT A VICTIMOUS CRIME - BY MARIUS HAMAN
Thursday, August 11, 2011
On 17 January 2011 shocking news of Warrant Officer Nortje’s death reached the Bowman Gilfillan Anti-Counterfeiting Group. Warrant Officer Nortje was the head of the South African Police Services’ Anti-Amuggling unit in Durban Harbour. This unit is tasked with investigating the smuggling of counterfeit and elicit goods into South Africa. News reports confirmed that Nortje was shot and killed in his own drive way and the death was being described as a “hit”. Given that he had recently been involved in the arrests and seizures related to high profile counterfeit goods cases, there was an immediate suspicion that his death was linked to the duties which he performed with great skill and enthusiasm.

THE TRADE MARK BATTLE FIELDS - BY ALICIA LOUW
Thursday, August 11, 2011
A trade mark is often described as a mark capable of distinguishing one person’s goods or services from that of another, or more simply as a badge of origin for the goods or services its used in respect of. The Trade Marks Act provides the following definition of a trade mark: “... means a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person”

PROCEDURES UNDER THE COUNTERFEIT GOODS ACT: THE IMPORTANCE OF A PROPER COUNT - BY JANINE THOMAS
Thursday, August 11, 2011
Since its enactment on 1 January 1998, the Counterfeit Goods Act (“the CGA”) has become the primary tool for brand holders in combating counterfeiting in South Africa. A unique feature of this Act is that it allows a complainant to pursue both a criminal and/or civil legal route against an offender. Due to the nature of counterfeiting activities, it would appear that criminal measures are the most effective means of combating counterfeiting activities. However, what is clear is that, irrespective of the action adopted by the brand holder (i.e. civil of criminal), the procedures and formalities under the Act should be strictly complied with to ensure success. This is evident in the recent review decision of Johnson & Johnson v Magistrate N Setshogoe NO and others (unreported) (2010) ZAGPPHC 125 (29 September 2010).

FRANCHISING, LICENSING, DISTRIBUTION, AGENCY AGREEMENTS: CONSUMER PROTECTION ACT REGULATIONS AT LAST - BY EUGENE HONEY
Wednesday, August 10, 2011
As you may be aware the definition of a franchise agreement in terms of the Consumer Protection Act is fairly broad and this includes a full business concept franchise arrangement, as well as similar arrangements such as license, distribution and agency arrangements or contracts.

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• Consumer Protection Act
• Proposed Labour Law Amendments
• New Companies Act
• NHI