Deficiencies in the tests for distinctiveness and reputation: A discussion of passing off in light of Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Deficiencies in the tests for distinctiveness and reputation: A discussion of passing off in light of Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

Author Safura Abdool Karim

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

Abstract

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.

The quest to use CRISPR technology in tackling the South African tuberculosis epidemic: Examining how the crispr patent and licensing regime may impact access to CRISPR-related tuberculosis therapies

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

The quest to use CRISPR technology in tackling the South African tuberculosis epidemic: Examining how the crispr patent and licensing regime may impact access to CRISPR-related tuberculosis therapies

Author Tamanda Kamwendo

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

Abstract

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.

Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy

Author Ifeoma Ann Oluwasemilore

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

Abstract

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.

Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

Author Sanya Samtani

ISSN: 2521-2591
Affiliations: Postdoctoral research fellow at the South African Research Chair Initiative in International and Constitutional Law, Department of Public Law, University of Pretoria
Source: South African Intellectual Property Law Journal, 2022, p. 66 – 104
https://doi.org/10.47348/SAIPL/v10/a4

Abstract

Although the COVID-19 pandemic has receded from daily news coverage, it still continues. Despite states committing to a human rights approach to ending the pandemic, and bearing human rights obligations to that effect, they have under-realised these obligations during this crisis. This article identifies the institutional design of the international trade regime as one of the key reasons for this failure. The article analyses the COVID-19 TRIPS waiver proposals and the Geneva package outcome emerging from the World Trade Organisation (WTO). It focuses on one aspect of both waiver proposals that is absent from the Geneva package outcome: states’ commitment to refrain from approaching the WTO Dispute Settlement System (DSS). The article argues that state parties to international human rights treaties and the WTO-covered agreements bear concurrent trade, intellectual property and human rights obligations. While international law requires states to harmoniously interpret these obligations to give effect to all of them, states have failed to do so. Instead, states’ trade and intellectual property obligations have become hegemonic, leading to the prioritisation of the market at the cost of human lives during one of the biggest humanitarian crises in recent memory, and necessitating the waiver proposals. The article concludes that, in the short term, waivers of intellectual property obligations as well as commitments not to bring actions at the WTO DSS are crucial to ensure that states can fulfil their human rights obligations during pandemics. In the longer term, this state of affairs highlights the need for rethinking existing international legal structures and the values that they promote.

Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

Author Lonias Ndlovu

ISSN: 2521-2591
Affiliations: Associate Professor and Interim Director, School of Law, University of Venda, Thohoyandou, South Africa
Source: South African Intellectual Property Law Journal, 2022, p. 105 – 130
https://doi.org/10.47348/SAIPL/v10/a5

Abstract

This article surveys the patent opposition legal landscape in the SADC region and justifies the importance of patent opposition for access to essential medicines by SADC citizens. The article uses Thailand as a comparative jurisdiction and, after taking a closer look at the patent opposition provisions of the laws of Botswana, Malawi, Zambia and Zimbabwe, the article advances the view that the SADC patent law reform agenda can learn a lot from its Thai counterpart on pharmaceutical patent opposition. Most SADC members with patent opposition provisions in their laws provide for pre-grant rather than post-grant opposition. Generally, pre-grant and post-grant patent opposition procedures ensure that only deserving patents may be successfully applied for and granted. The article concludes that the Thai pre-grant opposition procedures are an example of progressive law, which the SADC region should consider emulating to improve access to affordable essential medicines. The Thai experience may provide helpful and practical pointers for some SADC members when their patent opposition procedures are eventually tested before the courts and intellectual property tribunals.

Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

Author Bongiwe Zungu

ISSN: 2521-2591
Affiliations: Lecturer in Commercial Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2022, p. 131 – 143
https://doi.org/10.47348/SAIPL/v10/a6

Abstract

Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights of persons with print and visual disabilities. The threatened rights include the right of access to information, the right to education, the right to equality and the right to human dignity. South Africa has been undergoing a process of copyright reform for over 15 years to remedy the violation of these rights. However, pending the finalisation of this process, the threat to these rights persists, and the matter thus warranted the intervention of the apex court in Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33. This note first considers the regulation of copyright in South Africa to provide context. The note then analyses the Constitutional Court’s decision and considers the decision of the court a quo to provide some background on the matter. The note ends with an analysis of the implications of the judgment for persons with print and visual disabilities and a discussion of issues that the court did not consider.