No Trade Mark Protection for Rubik’s Cube Puzzle
Discussion: Court of Justice of the European Union; November 10, 2016, Case 30/15, Simba/EUIPO (full text here). In this case the CJEU could further clarify how to apply the rule of European trade mark law providing that trade marks that consist exclusively of a shape or other characteristic of a product that is necessary to obtain a technical result cannot be protected. The decision is interesting for South African trade mark law, since section 10(5) of the Trade Marks Act contains an almost identical rule. Simba, a...
Read MoreWhat’s In A Name
In his play “Romeo and Juliet” William Shakespeare advanced the proposition through his character Juliet: “What’s in a name? That which we call a rose by any other name would smell as sweet.” What he was saying was that the flower, the rose, had intrinsic value, and, no matter what name it was given, that intrinsic value would be unaffected. The actual name, per se, was thus irrelevant and had little or no value. That proposition may have had some merit in the seventeenth century and in the specific context in which it was advanced, but it does not have universal application at the...
Read MoreReviewed: IP Consultative Framework 2016
Summary: While the Department of Trade and Industry’s recently published Intellectual Property Consultative Framework promises that future legislation will be the result of a thorough examination of the matters of concern by experts, and stakeholders, in the field, it should also consider undoing the potential damage which may have already been done to our intellectual property laws as a result of the failure to proceed with such rigour in the recent past. To read the IP Chair’s full review of the IP Consultative Framework click here. Follow Share on...
Read MoreIntellectual Property and the Constitution
Section 2 of the Constitution of the Republic of South Africa, 1996, provides that it is the supreme law of the country and that any law inconsistent with it is invalid. This provision creates the necessity to interpret the Copyright Act in a manner consistent with the Constitution at the risk of the Act, or particular provisions of it, being declared to be invalid. On the other hand, section 36 provides that the rights in the Bill of Rights (Chapter 2 of the Constitution, comprising sections 7-38, which detail the fundamental human rights) may be limited in terms of law of general...
Read MoreSupreme Court of Appeal Losing Its Shape
INTRODUCTION The Supreme Court of Appeal has been blessed for the past few decades by having in its ranks judges who have experience and expertise in the field of Intellectual Property Law. One thinks of Judges like Chris Plewman and Louis Harms who had a wealth of experience in handling IP cases while practising as advocates at the bar and in hearing such cases both in Provincial Divisions as well in the Supreme Court of Appeal. This factor contributed substantially to the quality of IP judgments emanating from the Supreme Court of Appeal generally being of a high standard. The development...
Read MoreKeyword Advertising: The Next Instalment in the Interflora v M&S Saga
A few days after the first South African case to consider the issue of Internet keyword advertising (Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd & Another Case 39605/13, 29 October 2014), we had the next instalment – from the English Court of Appeal – in the dispute between Interflora and Marks & Spencer (Interflora Inc & Another v Marks & Spencer plc [2014] EWCA Civ 1403). Yes, it is, indeed, not just any dispute concerning keyword advertising. It appears that these two litigants have taken it upon themselves to definitively settle the law relating to...
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