http://www.bowman.co.za Leading Corporate and Commercial South African law firm with professional lawyers en-US Copyright 2010 Bowman Gilfillan Inc. All Rights Reserved. Thu, 29 Jul 2010 06:00:00 GMT Law http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417488 The Consumer Protection Act sets up an extensive administrative structure for the protection of consumers, with numerous provisions dealing with the obligations that businesses have, and, also, actions that they may not take. One of the obligations that will apply is that a person providing goods or services to consumers will be allowed to conduct business only under specific names (section 79(1)). A number of scenarios are envisaged by Act. Fri, 23 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417488 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417487 In a recent decision in the United Kingdom, MCB Printing and Design Limited v Kall Kwik UK Limited, the existence of a duty of care owed by franchisors in dealing with franchisees, including potential franchisees, was confirmed. In the course of the court's judgment, it dealt with a description of the nature of a franchise. It was stated that although franchised businesses operate with a large degree of independence, there is, as part of the framework, the offer of assistance and services to franchisees for the benefit both of the franchisee and the franchisor. The franchisee has the benefit of the association with a well known name, and of access to an established business framework, and the franchisor inevitably benefits from a business run successfully which reflects well on its brand name. The bases of the franchisee's case were the following. Fri, 23 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417487 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417486 A Franchise Agreement is a sophisticated form of Licence Agreement. It is therefore necessary to first look briefly at what a license is and what can be licensed. The graph below sets out the essentials of a License Agreement. You will note that at the core, it is a contractual business relationship between a licensor and licensee. The licensor is either the proprietor or a holder of certain intellectual property rights or technology which he allows the licensee to use in return for some sort of remuneration or other advantage. Tue, 20 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417486 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417485 Memoranda on Disclosure Document Operations Manual Tue, 20 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417485 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417484 The most valuable asset in most franchise systems is the brand. Amazingly, it is in many instances not properly protected. To obtain competent protection for a brand, it is necessary to register all the trade marks, parts or aspects thereof which form part of the brand, at the South African Trade Marks Registry or at the relevant country or regional registry. Tue, 20 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417484 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417483 Unprepared or weaker Franchisors including particularly those who do not prescribe to competent franchisor practices or fail to provide reasonable value to the franchisees might find themselves vulnerable to a variety of difficulties, when the Consumer Protection Act comes in to operation during October later this year. Tue, 20 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417483 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417482 In addition to the brand, another two types of the intellectual property which are commonly licensed in a franchise system and which are also extremely valuable assets are copyright and know-how. Copyright is the right, broadly speaking, given to the creator, developer or author who may own the copyright, not to have the work copied or reproduced without authorisation. Tue, 20 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417482 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417481 The Consumer Protection Act ("the Act") will apply to franchise agreements and is likely to pose significant challenges to many weaker franchisors, including those which do not abide by best franchise practices or provide reasonable value to their franchisees. Tue, 06 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417481 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417480 The enormous rate at which information and knowledge is being created, distributed and disseminated renders it crucial that minds creating them enjoy protection and security. Underlining the importance of such protection is that sophisticated nations - generally the leaders in technological advances - place extraordinary emphasis on how information and knowledge are best protected. Thu, 01 Jul 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417480 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417479 Getting The Deal Through - Mergers and Acquisitions - South Africa Wed, 30 Jun 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417479 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417478 The PLC Cross-border M&A Handbook for 2010/2011 - South Africa Wed, 30 Jun 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417478 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417477 Certain legislation authorises companies to engage in certain conduct. However, not even authorisation of a particular conduct by regulation places a firm beyond the competition authorities' reach. If such conduct is potentially anti-competitive, the competition authorities have the power to scrutinise it. Mon, 28 Jun 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417477 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417476 The South Africa PLC Dispute Resolution Handbook/Arbitration Handbook for 2010/2011 Mon, 21 Jun 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417476 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417475 In the recent decision of Competition Commission v Telkom [2009] ZASCA 155,1 the Supreme Court of Appeal ("the SCA") dealt with the application of section 3(1A)(a) of the Competition Act 89 of 1998 ("the Act"), which confers concurrent jurisdiction on the competition authorities (the Competition Commission, the Competition Tribunal and the Competition Appeal Court) and various sector regulators. Tue, 15 Jun 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417475 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417474 Visitors to South Africa may find a property they wish to make their new or second home, or to buy property for rental or investment purposes. Bowman Gilfillan Inc has the expertise to assist in negotiating a contract to protect the interests of a buyer or seller. We can supervise or attend the process of registration of transfer of ownership of immovable property and advise purchasers on the security of title. Our international reputation and local market knowledge establishes confidence in our expertise. Mon, 07 Jun 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417474 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417472 South Africa's competition authorities are threatening to undermine the very essence of the nation's highly successful franchise business model. The franchise business model is a popular vehicle for opening up markets for small and medium businesses. Not only does the model help create jobs; it is also an efficient method for distribution of goods. Thu, 27 May 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417472 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417471 It is hardly a secret that many large, well-known, South African companies have been engaged in cartel behaviour over the past few years. Nor is it a secret that the competition authorities have imposed substantial financial penalties upon cartel participants. Such penalties - of up to 10% of annual turnover in South Africa and exports from South Africa during the company's preceding financial year-can extend to many millions of rands. Thu, 27 May 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417471 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417470 Merger filing requirements, ever a complex process, have just become yet more onerous - and confusing. On 30 March 2010, the Competition Commission issued its first practice note on complete merger filing requirements with the aim of providing guidance on preparing a complete merger filing. Thu, 27 May 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417470 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417469 In specific circumstances the Competition Commission ("the Commission") restricts access to its full record by claiming litigation privilege over certain documents. Without access to the complete Commission investigation record, would respondents' fair hearing rights be compromised, and if so, would this constitute undue encroachment on the respondents' ability to meet a case made against them. In contrast, would unrestricted access to the Commission's investigation notes have a chilling effect on the investigative process? Thu, 27 May 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417469 http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417468 Business managers should closely study the provisions of the new Protection of Personal Information Bill. They must avoid the temptation to ignore it on account of its title. That's because in addition to the Bill affording important protection for South Africans who divulge their personal information to third parties, it will also have a direct impact on South African companies in a number of ways. Thu, 27 May 2010 08:00:00 GMT http://www.bowman.co.za/LawArticles/Law-Article.asp?id=2132417468