Shape up or ship out! — On establishing that a shape has ‘acquired distinctiveness’ for trade mark purposes

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

Shape up or ship out! — On establishing that a shape has ‘acquired distinctiveness’ for trade mark purposes

Author Michael Tsele

ISSN: 1996-2177
Affiliations: BA LLB (Rhodes)
Source: South African Law Journal, Volume 137 Issue 3, p. 528-564

Abstract

This article concerns a controversial topic in trade mark law: the proper test that must be applied when determining whether a shape mark has acquired distinctiveness. The first part traces the source of the controversy and analyses recent developments in comparative jurisdictions to unpack the nuances in the debate as to the proper approach to establishing acquired distinctiveness. Here I argue that there are, in fact, no less than three different tests. I then consider the position in South Africa, particularly in the light of the Supreme Court of Appeal’s decision in Société des Produits Nestlé SA v International Foodstuffs Co [2015] 1 All SA 492 (SCA). I aim to debunk some misconceptions particularly with respect to claims that South Africa is now out of line with Europe, inter alia because the SCA has abandoned a standard set in Beecham Group Plc v Triomed (Pty) Ltd 2002 (4) SA 193 (SCA). I take a different perspective. First, I contend that Beecham itself is now questionable authority, given recent developments in trade mark law. Secondly, contrary to several commentators’ views, the Beecham test is different from the test currently favoured in the United Kingdom and Europe. Finally, I suggest how the Supreme Court of Appeal could clarify the proper standard to be applied in South Africa when determining whether a shape mark has acquired distinctiveness.

Adapting Transboundary Water Agreements to Climate Change: Experiences From Finland And Southern Africa

by | Nov 15, 2020 | SAJELP, SAJELP 2019

Adapting Transboundary Water Agreements to Climate Change: Experiences from Finland and Southern Africa

Authors Niel Lubbe and Tuula Honkonen

ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 5 – 41

Abstract

This article focuses on transboundary water governance in light of adaptation to climate change. A conceptual discussion on adaptation in transboundary water agreements aims to provide a background for the analysis of the legal and policy regimes in Finland and Southern Africa. This conceptual discussion identifies important aspects that need to be considered for law and policy aiming to regulate adaptation in transboundary water agreements. Chosen examples in each jurisdiction are analysed in order to see to what extent they provide for adaptation to climate change. This analysis in each jurisdiction is conducted with the conceptual background discussion in mind. After analysing the specific regulatory instruments in both jurisdictions, this article concludes by identifying some common ground in the adopted approaches and by providing some suggestions as to the way forward when regulating adaptation in transboundary water agreements.