oa Comparative and International Law Journal of Southern Africa - The McDonald's case and the limitations of the famous mark application in trade mark law
The position of a foreign trader under the common law has never been quite clear in South Africa. Our courts have held in a number of decisions that where a trader has never performed or executed his business in this country and has subsequently not acquired any goodwill here, he is not entitled to relief. This appears to have been the position even if his business advertisements were published in foreign magazines which were read by the South African public. With the coming into operation of the new Trade Marks Act 194 of 1993 on 1 May 1995, it was hoped that the effect of the above approach would be softened with the prohibition of the unauthorised registration and use of unregistered trade marks which are well known in the Republic as being the marks of persons who are nationals of, domiciled in, or have commercial establishments in member countries to the Paris Convention. Inadequate protection of this nature will have a negative impact on South Africa's efforts to attract foreign investment.
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