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.

Corporal punishment and the costs of judicial minimalism

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

Corporal punishment and the costs of judicial minimalism

Author Patrick Lenta

ISSN: 1996-2177
Affiliations: Associate Professor, Law Faculty, University of Technology Sydney; Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 2, p. 185-200

Abstract

In Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SA 1 (CC), the Constitutional Court declared the common-law defence of ‘reasonable corporal punishment’ unconstitutional. This note draws attention to the costs of the court’s embrace of judicial minimalism. I argue that the narrowness of the judgment — the court’s restricting the grounds of its decision to just two — and its shallowness — the Chief Justice’s eschewal of theoretical ambition in particular — results in a failure credibly to justify the restriction of parents’ freedom to raise their children as they see fit. Not only does this justificatory shortfall risk eroding the court’s perceived legitimacy, it also neglects appropriately to educate citizens about the wrong fulness of all parental corporal punishment, undermining the judgment’s potential to bring down the incidence of this practice.

South African Airways makes an emergency landing into business rescue: some burning issues

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

South African Airways makes an emergency landing into business rescue: some burning issues

Author Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Attorney and Notary Public of the High Court of South Africa
Source: South African Law Journal, Volume 137 Issue 2, p. 201-214

Abstract

The initiation of the voluntary business rescue of South African Airways marks the first time in South African law that a state-owned entity has been placed under business rescue. The step poses some challenging legal issues for the field of business rescue. It also holds crucial lessons for the directors of other state-owned companies in financial distress. This note considers some of these burning legal issues, including the duty of the directors of a company that is nearing insolvency to cease trading, how to assess whether a company is financially distressed and should be put under business rescue, and whether the post-commencement financier has a right to vote on the approval of the business rescue plan.