Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

Author Kolapo Omidire

ISSN: 2521-2591
Affiliations: North-West University, Potchefstroom
Source: South African Intellectual Property Law Journal, 2019, p. 143 – 162

Abstract

South Africa is considering plans to develop shale gas by hydraulic fracturing as a source of energy. In countries where hydraulic fracturing is presently undertaken a claim of trade secrets by operators is a common phenomenon. However, while the underlying rationale of safeguarding commercial transactions by means of protecting trade secrets may be reasonable, there is a need for caution as, unfortunately, other interests may be prejudiced. In the case of hydraulic fracturing, the conceptualisation of the right of access to information as a leverage right which makes other rights possible, means it could be applied by people whose rights may be infringed by a claim of trade secrets. Therefore, any restriction of the exercise of that right by a claim of trade secrets has the potential to violate the right of access to information. A claim of trade secrets which ultimately violates the exercise of the right of access to information in relation to hydraulic fracturing also contextualises the problem in relation to similar claims in other developmental processes. Given the need to guarantee the right of access to information as an enabler for the enforcement of other rights that may be adversely impacted by hydraulic fracturing, this article examines potential lessons that can be distilled for South Africa in relation to the regulation of trade secrets under the law of the state of Pennsylvania in the United States of America.

Statutory trade mark infringement and questions about confusion

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Statutory trade mark infringement and questions about confusion

Author Owen Salmon

ISSN: 2521-2591
Affiliations: One of the Senior Counsel for the Republic of South Africa
Source: South African Intellectual Property Law Journal, 2019, p. 163 – 181

Abstract

This article considers the principles advanced by South African courts in trade mark infringement litigation pertaining to confusingly or deceptively similar word marks. Such consideration entails the discussion of case law from other jurisdictions, where it has informed South African case law. It also draws on recent UK and ECJ case law that exemplifies a modern purpose-driven approach to these disputes. The article argues that several of the principles applied by South African courts are outdated, inappropriate and ill-suited to the task. It contends that the courts ought to dispose of or modify such principles in view of current modern contexts, including online environments, in which consumers operate. Accordingly, it puts forward recommendations for statutory reform which would be more appropriate for the contemporary context.

Analysing South Africa’s comlicensing jurisprudence: Is there room for the public interest (PI) in intellectual property (IP)?pulsory

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Analysing South Africa’s compulsory licensing jurisprudence: Is there
room for the public interest (PI) in intellectual property (IP)?

Author Yousuf A Vawda

ISSN: 2521-2591
Affiliations: Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Intellectual Property Law Journal, 2019, p. 182 – 198

Abstract

Despite South Africa having provisions for compulsory licensing on its statute books in over a century of patent legislation, no compulsory licences have been granted on a pharmaceutical-related patent in the country. Given the impact of the high prices of many life-saving patented medicines on affordability and access, it raises the question: why is this the case? This article endeavours to review the case law on applications for compulsory licences on pharmaceutical and related patents under the current legislation, analyse the interpretations placed on the relevant sections, and draw conclusions about judicial reasoning, impediments to the grant of such licences, and generally the courts’ approach to disputes relating to patents. It concludes, among others, that the very architecture of the patent landscape, combined with an overly formalistic approach to judicial interpretation and adjudication, may be responsible for the lack of efficacy of this provision in the law.