South African Intellectual Property Law Journal - Volume 5 Number 1, November 2017

Products can be marketed in a number of ways, including through advertising and the distribution, usually for free, of goods not necessarily related to the core goods. A good example of this latter manner of promoting products is provided by pharmaceutical companies, which often distribute goods of a diverse nature to medical practitioners, such as pens, towels, soaps and calendars, featuring their house mark or a psecific medication’s trade mark.

Non-traditional marks, also known as non-conventional marks, include, inter alia, sound marks, texture marks, gesture marks, taste marks and smell marks.¹ ‘Market-savvy’ companies want to design and advertise their products in a manner that appeals to consumers’ aesthetic sense.² The rationale is that a mark that adds emotion to the product or the service on offer is likely to influence the consumer’s purchasing decision.3 The use of non-traditional marks in the marketplace is a new development and it has transformed the field of trade mark law.

BMW v Grandmark International¹ and Chespak v MCG Industries² are two recent South African design law cases which provide some clarity on the scope of design protection, the inherent limits provided by the Designs Act 195 of 1993 (the Designs Act) and, particularly, the interplay between aesthetic and functional features of a design.

Patents are sometimes regarded as indicative of the pinnacle of innovation.1 A measure of respect is often given to granted patents, in part due to the relatively strict and technical examination process that is often necessary to obtain a granted patent.2 The patent examination process typically includes the evaluation of a number of substantive criteria. This work focuses on one of the threshold requirements for a grant of patent, namely, subject matter eligibility.

Whether they are casually exploring caves for treasure chests, soaring through the sky or saving a princess in a castle, video games1 have become a medium of entertainment, storytelling and, in the case of some, even an art form. While they are a source of entertainment, they can also be the subject of controversy, both social and legal.

Collecting societies are associations of copyright or neighbouring right owners (right owners), whether natural or legal persons, established by free association with the main aim of negotiating and granting licences as well as collecting and distributing royalties for the benefit of their members. They were necessitated by the free exploitation or use of copyright works, without any form of remuneration or compensation for the copyright owners.

Intellectual property law is a legal concept that protects the creation of human ingenuity. The World Intellectual Property organisation (WIPo)¹ defined the concept as a creation of the mind, namely, inventions, literary and artistic works, and symbols, names and images used in commerce. Indeed, intellectual property constitutes creative works and inventions that are the manifestations or expression of ideas deserving protection as of right.

The Supreme Court of Appeal (SCA) has had a relatively busy time over the past few years dealing with trade mark disputes. There have been at least thirteen of them between 2014 and June 2017.¹ of these, seven have confronted the challenging and elusive question of the likelihood of confusing and/or deceptive similarity between trade marks and, in some cases, also between their respective goods and services.²

Recently the South Gauteng High Court had the opportunity to consider the appropriate use of news media content published by commercial competitors in the online environment. In Moneyweb (Pty) Ltd v Media 24 Ltd & another1 (Moneyweb) the applicant, a financial news publication, alleged that the first respondent had reproduced substantial parts of seven of its articles and, as they were protected by copyright as literary works, such action constituted both direct copyright infringement and unlawful competition.

The Kenyan Copyright Act¹ (the Copyright Act) creates different offences relating to the infringement of copyright.² It should be mentioned at the outset that apart from the criminalisation of copyright infringements, the Copyright Act also provides for civil sanctions such as damages,³ injunctions⁴ and delivery up.⁵ A discussion of the civil sanctions falls outside the scope of this paper. The sentences prescribed for these offences range from a fine of up to one hundred thousand shillings⁶ to imprisonment for a term not exceeding ten years or both.⁷

As Nigeria grapples with the challenges of technological development, it is fitting that scholarly works that explore how the legal system valorises innovation and creativity enter the market to join, guide and participate in the public discourse on the appropriate policies, rules and regulations which recognise and protect intellectual property.