ISSN: 1996-2177
Affiliations: University of Stellenbosch
Source: South African Law Journal, Volume 140 Issue 1, p. 225-233
https://doi.org/10.47348/SALJ/v140/i1a10
None
ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 1, p. 234-238
https://doi.org/10.47348/SALJ/v140/i1a11
None
ISSN: 2521-2591
Affiliations: PhD candidate, University of KwaZulu-Natal; Pupil Advocate, Johannesburg Society of Advocates
Source: South African Intellectual Property Law Journal, 2022, p. 1 – 13
https://doi.org/10.47348/SAIPL/v10/a1
The delict of passing off has evolved and expanded incrementally over time and remains a powerful means of protecting unique aspects of one’s products. While passing off seeks to prevent unlawful competition, courts are tasked with balancing which interests ought to be protected by passing off claims against the need to allow market forces and not to unduly constrain competition. The test for passing off has consisted of proof of reputation, misrepresentation and damage. A fundamental component of establishing reputation has been the need to demonstrate its distinctiveness. Notwithstanding this, the law on passing off has also developed to exclude ‘legitimate copying’ – especially where a particularly successful get-up transforms into a market standard. The Supreme Court of Appeal’s decision in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG is an opportunity to consider how these concepts operate in a market where many products share similar features, and where the claimant controls a significant proportion of the market share. While Koni offers much food for thought, this article seeks to explore its treatment of distinctiveness in the context of proving reputation and to offer a pathway to develop this test in a manner that better promotes consumer interests and preserves fair competition.
ISSN: 2521-2591
Affiliations: Lecturer, Private Law Department, University of the Free State
Source: South African Intellectual Property Law Journal, 2022, p. 14 – 37
https://doi.org/10.47348/SAIPL/v10/a2
Tuberculosis (TB) continues to be the top killer disease in South Africa; there is little hope of a very efficient treatment in the near future. It is therefore becoming increasingly clear that the long-term solution to TB requires more than simply adding to the current arsenal of TB drugs. A treatment that provides quicker and long-lasting results is needed. Public health innovations such as genome editing present a promising therapeutic paradigm shift in terms of TB immunisation or treatment. The diversity of the Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR)-Cas9 genome-editing technology holds promise in its ability to alter the genome and to control gene expression. While the promotion of CRISPR research is a crucial public health intervention, the realm of patent laws clashes with promoting public health needs, which may delay the speedy use of this technology for disease treatment. For that reason, in this article, I discuss the South African CRISPR patent landscape and its impact on the proposed applications of genome editing technology in public health. I explore the complexities raised by the CRISPR patent landscape and how that may lead to high prices for these CRISPR therapies – thereby limiting patients’ access. I conclude by proposing recommendations on how we can efficiently bridge the disconnect between the existing CRISPR patents and access to CRISPR therapeutics as a public health benefit.
ISSN: 2521-2591
Affiliations: Senior lecturer, Department of Commercial and Industrial Law, Faculty of Law, University of Nigeria, Nigeria.
Source: South African Intellectual Property Law Journal, 2022, p. 38 – 65
https://doi.org/10.47348/SAIPL/v10/a3
Nigerian fashion entrepreneurs are finding the market increasingly appealing due to the growing viability of small and medium-size enterprises (SMEs) in the fashion industry, particularly online retail fashion stores, and the easy accessibility of the Internet and digital media. However, with intellectual capital being the hallmark of the fashion industry, the nearly constant violation of intellectual property (IP) rights is a threat to the fashion sector’s continued existence and profitability in Nigeria. Fashion businesses are thwarted by an antiquated IP regime and the conflicting decisions of the courts on infringement cases which continue to frustrate the marketing of fashion brands on social media. This study used a descriptive and analytical approach, relying on both primary and secondary data, to analyse and assess the laws available for the protection of fashion designers’ intellectual works. The study also considers the various developments in fashion IP protection in more advanced countries, such as the United States and in the European Union, and makes practical recommendations to support the growth of IP law, fashion legislation and the Nigerian fashion industry in the digital economy.