From Century City to Sandton City: Aspects of geographical trade marks

From Century City to Sandton City: Aspects of geographical trade marks

Author Wim Alberts

ISSN: 2521-2591
Affiliations: Professor of Mercantile Law, University of Johannesburg
Source: South African Intellectual Property Law Journal, 2020, p. 1 – 12

Abstract

A name that is a geographical designation may at times acquire a secondary meaning, indicating the origin of goods or services. With regard to retail services it is well established, in South Africa and Europe that they qualify for protection – the essence being the bringing together, for the sake of convenience goods for purchase by the public. However, a particular problem has arisen in relation to shopping complexes. Whilst European, but also British, law has protected such marks, they have also come under attack. The basis for the latter, in brief, is that the names of the complexes have become landmarks or acquired primarily a geographical significance. In Britain for instance protection was not granted to the mark canary wharf, as it, amongst others, was the name of a political ward. The marks in other words no longer function as trade marks. This issue came to a head in the judgment in the Century City case. In this matter the trade marks of a retail establishment were attacked on the ground that they have come to relate more to a place name than a trade mark. Having regard to the need for tenants to describe their businesses whilst using the name, the principal marks were expunged. In applying the case to developments such as Sandton City, possible discerning factors are investigated. One might be single ownership of the complex. Another interesting question is the impact of the situation where there is a pre-existing suburb, with the same name as the complex, versus where the complex is built later on.

Corporate control of intellectual property for wealth maximisation: Prospects for stakeholders’ protection within corporate law

Corporate control of intellectual property for wealth maximisation: Prospects for stakeholders’ protection within corporate law

Author Nojeem Amodu

ISSN: 2521-2591
Affiliations: Postdoctoral Research Fellow, University of Cape Town
Source: South African Intellectual Property Law Journal, 2020, p. 13 – 34

Abstract

Corporate interests have dictated globalised protection and enforcement of intellectual property rights (IPRs). Corporations have not only controlled IPRs as exclusive private properties, gotten IPRs strengthened as trade-related in the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPS), but have also laid property-based human rights protection claims to IPRs. While IPRs controlled by businesses have largely enhanced shareholder value, they have also engendered corporate abuses with negative impacts on competing interests of other corporate stakeholders, including the employees, contractors and consumers. This paper interrogates the extent to which such stakeholders are (or can be) protected within the IP law and corporate law framework. It provides specific instances of corporate abuses of IPRs, highlighting attendant injuries to relevant stakeholder interests. Following the identification of a few remedies available within the IP law system, the paper examines not only current possible safeguards at corporate law but also proposes new and complementary roles corporate law may play towards the protection of victim stakeholders from asocial control of IPRs using the corporate form.

Levelling the playing field to promote technology transfer and innovation in African least developed countries

Levelling the playing field to promote technology transfer and innovation in African least developed countries

Levelling the playing field to promote technology transfer and innovation in African least developed countries

Author Fernando Dos Santos

ISSN: 2521-2591
Affiliations: Laurea (Trento), LLM (London), PhD (Wits)
Source: South African Intellectual Property Law Journal, 2020, p. 35 – 55

Abstract

Indisputably, technology and innovation play a crucial role in promoting development and the betterment of people’s lives. However, access to technology is often hindered by proprietary claims from private corporations who are its major rights holders. Over the years, the efforts to facilitate access and transfer of technology for the states in need, especially the least developed countries (LDCs), have been frustrated by the lack of adequate international legal frameworks. The provisions of arts 7 and 66.2 of the TRIPS agreement that have attempted to set a basic regime to promote the transfer of technology for the benefit of LDCs has failed to ignite the necessary flows of technology. Accordingly, this paper recommends two approaches to promote technology transfer for the benefit of LDCs, especially in Africa, which are: the improvement of the provisions of the TRIPS agreement related to technology transfer and/or the establishment of a unified legally binding international instrument – the Agreement on Trade Related Issues of Technology Transfer.

Evaluating the copyright protection of databases in South Africa: A comparative analysis with the European Union

Evaluating the copyright protection of databases in South Africa: A comparative analysis with the European Union

Author Ndivhuwo Ishmel Moleya

ISSN: 2521-2591
Affiliations: Attorney of the High Court of South Africa
Source: South African Intellectual Property Law Journal, 2020, p. 56 – 79

Abstract

This work offers a comparative evaluation of the South African and European Union (EU) copyright protection of databases. The work also considers how the originality standard in the Copyright Amendment Bill is likely to affect the copyright protection of databases in South Africa. The work also considers the intersection between the protection of databases and competition and the interface between the protection of databases and the exercise of certain constitutional rights in both jurisdictions. The main conclusion of the work is that the South African copyright standard for protecting databases is too low and should be revised to accommodate certain competition law concerns and the exercise of certain constitutional rights.

A commentary on broadcast copyright protection in Kenya and South Africa against the prism of WIPO negotiations on the rights of broadcasters

A commentary on broadcast copyright protection in Kenya and South Africa against the prism of WIPO negotiations on the rights of broadcasters

Authors Hezekiel Oira, Lonias Ndlovu, Desan Iyer and Ben Sihanya

ISSN: 2521-2591
Affiliations: Dean, Mount Kenya University School of Law, Nairobi, Kenya; Associate Professor and Dean, School of Law University, of Venda, Thohoyandou, South Africa; Associate Professor of Law and Deputy Dean: Teaching and Learning, Faculty of Commerce, Administration and Law, University of Zululand, KwaDlangezwa, South Africa; Professor of Law, Faculty of Law, University of Nairobi, Nairobi, Kenya
Source: South African Intellectual Property Law Journal, 2020, p. 80 – 108

Abstract

The concept of broadcast copyright is one of the most controversial and non-felicitous subjects at domestic and international levels. Most of the relevant international instruments and domestic copyright laws merely provide that broadcasting organisations shall enjoy protection over their broadcasts and programme-carrying signals. One such international treaty is the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations of 1961 (hereinafter called the ‘Rome Convention’). The other treaties that accord protection to broadcasting organisations are the Convention Relating to the Distribution of Programme-carrying Signals Transmitted by Satellite of 1974 (hereinafter called the ‘Satellites Convention’) and the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1994. The copyright protection of broadcasting organisations’ broadcasts in Kenya and South Africa is largely modelled upon the protection granted under international instruments. The uncertainty about the specific object and scope of copyright protection that broadcasters enjoy at the international level is replicated in the copyright laws of Kenya and South Africa.1 This article examines the object of protection in broadcasts and programme-carrying signals in Kenya and South Africa. The article further examines the judicial intervention, if any, in the two jurisdictions to deconstruct the notion of broadcast copyright. In the end, the article wraps up by carrying out a comparative analysis over the matter in the two countries before concluding that the copyright statutes in the two jurisdictions should be modified to reflect the current broadcasting realities and technologies.

Intellectual property protection for software: Global perspective and lessons for development and reform in Nigeria

Intellectual property protection for software: Global perspective and lessons for development and reform in Nigeria

Author Adebambo Adewopo

ISSN: 2521-2591
Affiliations: Professor, Nigerian Institute of Advanced Legal Studies
Source: South African Intellectual Property Law Journal, 2019, p. 1 – 30

Abstract

The protection of software or computer programs as the case may be is perhaps one of the most intractable intellectual property (IP) matters in the regulation of technological innovation. It has engendered considerable controversy in the normative structure of IP law and in its interaction with the rapid technological advances of the 21st century in the global economy. Significantly, the vastly utilitarian and unique profile of software has inexorably shaped the boundaries of its precise legal protection. From country to country, software’s legal landscape and the contours of IP protection have continued to reflect considerable global disharmony that has given rise to the need for legal clarification. This article discusses the subject from a global and development perspective. It examines the IP standard for software protection under the Nigerian law and compares it with the UK, EU and the US, and proposes reform of the existing regime.