ISSN: 1996-2177
Affiliations: Director, Mindfulness Africa; Attorney, Milkwood Law
Source: South African Law Journal, Volume 140 Issue 3, p. 678-683
https://doi.org/10.47348/SALJ/v140/i3a10
None
ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 3, p. 684-695
https://doi.org/10.47348/SALJ/v140/i3a11
None
ISSN: 1996-2185
Affiliations: Lecturer, North-West University
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 305 – 331
https://doi.org/10.47348/SAMLJ/v34/i3a1
The appeal in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG 2021 JDR 0414 (SCA) turned on whether Beiersdorf could stop Koni from selling its product in a get-up much like that of NIVEA MEN by asserting unlawful competition in the form of passing off. This question is answered by analysing case law on assessing the acquisition of distinctiveness. Given the lack of South African cases on this form of acquisition, reference is made to cases from other common-law jurisdictions. The discussion evaluates whether evidence presented by Beiersdorf supports the decision that the features in question are distinctive of its products. The findings illustrate that even a long-standing use of a trade mark which is not inherently distinctive will not make it distinctive. The decision in Koni is significant because it (incorrectly) bestows the use of specific colours on one enterprise to the exclusion of its competitors.
ISSN: 1996-2185
Affiliations: LLM Graduate, Rhodes University; Senior Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 332 – 347
https://doi.org/10.47348/SAMLJ/v34/i3a2
Social networking platforms have popularised catfishing, which entails creating and using a fake social media account to exploit other users. Catfishing involves acts of online misappropriation because the traits of a person’s identity, such as a name and photograph, can be used by a catfish to pose as another person to deceive other users. Image rights are frequently affected by such acts of impersonation. This article determines whether mere misappropriation of identity suffices as a cause of action for image rights violations. The South African courts must clarify whether mere misappropriation constitutes a ground for violating identity in catfishing cases. Thus, the courts should recognise mere misappropriation as sufficient to yield a claim when the falsification and commercial exploitation of identity cannot be proven. Such an approach will allow for the speedy resolution of disputes and will also ensure that justice is served before the plaintiff suffers irreparable harm as a result of image misappropriations on social media.
ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile and Labour Law, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 348 – 381
https://doi.org/10.47348/SAMLJ/v34/i3a3
Section 20(9) of the Companies Act 71 of 2008 (the Act) is a statutory version of the common-law remedy of piercing the corporate veil. Unfortunately, the legislature, by leaving undefined the phrases ‘interested person’, ‘unconscionable abuse’ and ‘any further order necessary to give effect to the declaration’ in s 20(9) of the Act, has left room for uncertainty regarding the interpretation of the section. After discussing the purpose of s 20(9) of the Act, the article makes recommendations for how the statutory veil-piercing remedy should be interpreted. The article suggests the inclusion in the Act of an extensive and open-ended definition of ‘unconscionable abuse’ that describes categories of abuse sufficient to justify piercing of the corporate veil. It is argued that the term ‘interested person’ should be read to exclude a company’s controllers acting for their own benefit when the controllers themselves have committed the unconscionable abuse. It is argued further that a court’s power to grant ‘any further order’ in addition to a disregarding of separate legal personality should be limited to orders that are necessary to provide adequate relief for the litigant that invokes s 20(9), namely impositions of rights and liabilities.