n South African Law Journal - Trade mark infringement : does a retailer 'use' the mark? : notes




The rationale for the protection of intellectual property rights, both of a statutory and common law nature, is often linked to the view that such rights are essentially of a negative nature (LT C Harms 'The role of the judiciary in the enforcement of intellectual property rights: Intellectual property litigation under the common law system with special emphasis on the experience in South Africa' 2004 EIPR 483 at 484 note 32). The Trade Marks Act 194 of 1993 may be an example. It enumerates the circumstances when a trade mark registration will be infringed (s 34(1)). These provisions are exclusionary in nature, and there is no enactment to the effect that, for instance, a registration provides the exclusive (positive) right to use the mark. Another approach is that the protection of intellectual property rights involves the positive right to do, as well as the (negative) right to prevent the doing of, certain acts ( 1986 (2) SA 623 (T) at 631G-632B; E D Du Plessis 'Immaterial property rights: Negative or positive?' 1976 17 at 22). This approach is evident from the Patents Act 57 of 1978. Certain actions, such as the 'making' of an invention are prohibited, so that the patentee 'shall have and enjoy the whole profit and advantage accruing by reason of the invention' (s 45). Another example is the Copyright Act 98 of 1978, which lists certain exclusive rights (s 6-11B), and then sets out the circumstances in which these rights will be infringed (s 23(1)).


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