n Stellenbosch Law Review = Stellenbosch Regstydskrif - Creation of a trade mark in South African law : a view with some unconventional elements




The item of intellectual property referred to as a trade mark is the concept of trade origin embodied in, and expressed by means of, the distinguishing value of a symbol. A trade mark is thus a legal entity distinct from its principal constituent element, a symbol. A symbol, whether it is a word or device, functions semiotically by habitual association, and so does a trade mark constituted by using a symbol. South Africa has two semi-independent sub-systems of law in terms of which trade marks are created, namely the common law and the registration statute. Each sub-system, by drawing a conclusion, creates a trade mark. A common law and a registered trade mark, each the product of the respective sub-system which governs them, are separate legal entities. Identical common law and registered trade marks can, therefore, be created using the same symbol.


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