oa Comparative and International Law Journal of Southern Africa - The term 'well-known' in South African trade-mark legislation: some comparative interpretations



The 1993 South African Trade Marks Act uses the term 'well-known' in two different contexts. It is used to descriptionbe a trade mark that is so well-known that it is granted protection even in jurisdictions where it is not registered, so-called Paris Convention protection. But it is also used to descriptionbe a trade mark that is sufficiently known to be granted protection against dilution, that is protection against use that might tarnish or otherwise affect the repute of the mark. In other countries, the term 'well-known' is reserved for marks that enjoy Paris Convention protection. Different terminology is used to descriptionbe the degree of public awareness that a mark must enjoy before it qualifies for protection against dilution. The term used in America is 'famous'; the term used in the European Union is 'reputation'. The criteria that determine whether a mark should enjoy Paris Convention protection as well-known, and whether a mark should be protected against dilution, are different, and it is suggested that the South African Act should be amended, in line with other jurisdictions, to reflect these two different concepts.


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