Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

Author: Nomthandazo Mahlangu

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

Abstract

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.

Setting boundaries for image misappropriations through online catfishing

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Setting boundaries for image misappropriations through online catfishing

Authors: Lisa Ndyulo & Nomalanga Mashinini

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

Abstract

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.

A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008

Author: Etienne Olivier

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

Abstract

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.

Accountability in the twin peaks model of financial regulation in South Africa

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Accountability in the twin peaks model of financial regulation in South Africa

Authors: Gerda van Niekerk & Hoolo ’Nyane

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Limpopo; Associate Professor of Public Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 382 – 403
https://doi.org/10.47348/SAMLJ/v34/i3a4

Abstract

The Financial Sector Regulation (FSR) Act 9 of 2017 implemented the first stage of the Twin Peaks model of financial regulation in South Africa. The Act established the Prudential Authority and the Financial Sector Conduct Authority to make the financial sector safer by using a more robust prudential and market conduct framework. The South African Reserve Bank received an enhanced mandate to promote and maintain financial stability. Since accountability is a core goal in financial regulation, this paper analyses the notion of accountability and specifically the accountability of the regulators in a Twin Peaks model of financial regulation. The legislative framework put in place by the FSR Act goes a long way in adhering to principles of accountability. The financial sector regulators are obliged to consult with various stakeholders such as the Minister of Finance and financial institutions. The regulators are subject to control measures, and Parliament holds them accountable. Nevertheless, the authors suggest that one more step is necessary. There should be more debate and engagement by the regulators with the general public to increase public knowledge of financial sector regulation in South Africa.

An analysis of the causes of violence during strike action in South Africa: A psychological perspective

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

An analysis of the causes of violence during strike action in South Africa: A psychological perspective

Author: Carlos J Tchawouo Mbiada

ISSN: 1996-2185
Affiliations: Senior Lecturer in Law, University of Venda
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 404 – 420
https://doi.org/10.47348/SAMLJ/v34/i3a5

Abstract

Peaceful strikes in post-apartheid South Africa are uncommon. Most industrial action is associated with violent acts to the extent that violence seems to be the norm. Different scholarly contributions regarding the causes of the high number of violent strikes in South Africa have been made; most of these, this article argues, are sociologically and legally inclined. Using the Freudian political psychology theory and the frustration-aggression hypothesis, this article opines that episodic waves of violent activities during strike action are subject to the psychological imbalances and frustrations emanating as a twin phenomenon of intrinsically motivated apartheid posttraumatic effects and people’s inability to meet their basic needs of life. Using an orderly and systematic review of the literature, the article unpacks the causes of violent strikes in South Africa in a psychological manner.

Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited

Author: Vuyo Ntsangane Peach

ISSN: 1996-2185
Affiliations: Associate Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 421 – 434
https://doi.org/10.47348/SAMLJ/v34/i3a6

Abstract

None