A freedom to operate, sustainably.

A freedom to operate, sustainably.

By Darren Olivier   Sunday, July 30, 2023   No comments:

Last week I spent time in Botswana for a hearing. It also gave me an opportunity to pilot my first international flight. It’s a wonderful thing when two passions align in a way that is also sustainable, thanks to local innovation.

My daughter taught me about the fun of “Insta Reels” and this one I share with you now. I hope you enjoy it as much as we did capturing it!

Botswana is an impressive country. Its people are friendly, welcoming, and very capable. It is relatively small but vast (about 5% of South Africa’s population and 25% of its land mass) and an important business hub in the region. It is also home to a number of tourist attractions, particularly in the Okavango area.

Gaborone, the commercial capital, is open for business. Its skyline illuminates at night with brands of well-known eateries, banks, fashion houses and other commerce. Any exchange control is light, and the benefits of foreign direct investment are clear with an apparently, thriving middle class. Hotels are busy and their rates comparable, if not higher, than those in Johannesburg 300kms away, suggesting a healthy level of demand and investment.

The courts are stately and proudly bear “minimum standards of service” in their opening halls. Litigating in Botswana on intellectual property cases is somewhat familiar because their laws and procedures are largely based on the English system. That said, it is embryonic when it comes to the number of published decisions on this area of law and as a result, lean on advocacy and common law from South Africa. This is why we were present.

Getting there by road from South Africa is relatively painless except for border control which can lead to unpredictable, if not significant, delays. It is also not entirely stress free as road safety issues and hijackings (on the SA side) have been reported and naturally scare those who must travel between the countries. As a result, the country’s policing system has a no-tolerance approach which acts in stark contrast to their otherwise amiable demeanor. Necessary, it would seem, to protect what the country has nurtured.

Flying commercially is the preferred way of travel but it’s not inexpensive, and although it is a short hop, it can take as long as road travel once airport waiting times and clearance delays are considered. Although it is safer than road travel, it is significantly less sustainable for such a short trip. This is where a private plane becomes an option as it can be the most affordable, safe (compared to road travel), and sustainable option, especially if the plane is made by a company like Sling Aircraft, itself a wonderful example of South African innovation.

Sling Aircraft are based just south of Johannesburg and over the last two decades have made private plane ownership and flight relatively affordable for businesspeople with long commutes or requirements for local travel to tricky to reach places. A secondhand Sling 2 or 4 seat aircraft, for example, is no less affordable than an executive vehicle and has significantly less environmental impact. It runs on ordinary unleaded petrol and uses less fuel than an equivalent road trip. It also does not depreciate as fast a car and is simply a joy to travel in. It took just 1hr 20mins to travel the distance between the cities.

Of course, flying in small planes is not for everyone and although it is convenient, it is vulnerable to vagaries of the weather so careful planning is required. There is no perfect option when it comes to travel across our continent, but general aviation or small plane travel, marginalised in recent times, can make a comeback thanks to local innovators, like Sling Aircraft and others.

Flying oneself is an experience quite unlike any other and this aspect is not represented in a comparison of facts and figures between the different forms of transport. It is a privilege, a challenge, a responsibility, and a freedom, none of which can be measured. I am just grateful that my own journey to learn to fly, which started a few years ago, has culminated in this example of practical integration into my professional career, not only as a commuter option which I have been doing now for some time, but also to connect people, skills and highlight innovation, in a sustainable way.

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South Africa's Eastern Cape hots up in latest passing off decision

South Africa's Eastern Cape hots up in latest passing off decision

By Afro Leo   Sunday, March 19, 2023   No comments:

South Africa: In the case of Fire Logic (Pty) Ltd (Fire Logic)  v Logic Group Africa (Pty) Ltd t/a Firelogik (Logic Africa), the Eastern Cape division of the High Court found this week that Logic Group had passed off its services by using the name “Firelogik”. The court interdicted them from using the name in the Cape provinces and ordered them to pay costs. This case illustrates the need for brand owners to have a zero-tolerance approach and be vigilant about trade mark misuse by others, to protect themselves with registered trade marks and use the courts to enforce where necessary.

Background:

Fire Logic has been in existence since 1994 and has developed a substantial reputation in its brand for fire protection and maintenance services. The dispute began in 2016 when the Logic Africa applied for a license using the name FIRELOGICS. This led to an exchange between the parties and Logic Group responded by stating that they were changing their name, but it never fully did so.

By 2019, Fire Logic realised that this nagging fire had only been partially doused when it received erroneous purchase orders from the retail store Pick ‘n Pay. Further correspondence was entered into, but it became clear, by August 2021, that the only way Fire Logic could stop the use of such a similar name, was to approach the court, which it did. It sought a final interdict and costs.

Logic Africa responded sometime later by taking down its website and opposing the applicant on the basis that a reputation could not be shown in the name and the no confusion was likely. It also claimed that the relief was then moot because of its name change in 2016.

Findings:

In a considered judgment, Acting Judge Bands found that FIRELOGIC was a fancy name and/or deserving of protection as a symbol of the goodwill attached to it. Then judge also found sufficient similarities in the name for there to be a likelihood of confusion, especially as the two parties operated in the “common field of activity” and in competition with one another.

 

For attorneys working with the nuances of application proceedings in South Africa, the judge  re-affirmed that bare denials in affidavits are not sufficient to create disputes of fact under the Plascon-Evans rule. It is also an example of a situation where an final interdict can be granted even where the dispute is alleged to be moot.

 

These findings lead to a decision against the Logic Africa.

 

Comment:

 

The analogy between a fire that does not want to extinguish and the facts of this case that took seven years to conclude (absent an appeal) are useful in illustrating the need for effective trade mark management and protection from the outset. This means that when a fire ignites, to continue the analogy, one must make sure it is dealt with comprehensively at the start. This means a zero-tolerance approach, continued vigilance, the use of undertakings and the need to apply for trade mark registrations (for swifter, less costly and more predictable outcomes, as well as the possibility of damages in the form of a reasonable royalty). In these types of cases, punitive costs may also be a handier deterrent – it should not be possible for seven years of such misuse - something for lawmakers to consider in future.

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2022 Crammer® Recordings - content for you!

2022 Crammer® Recordings - content for you!

By Afro Leo   Friday, November 11, 2022   No comments:

This year’s Crammer® event hosted by Adams & Adams in late October attracted over 250 attendees and is the largest legal conference of its type in Africa. It’s an annual event designed to distill a year’s worth of legal content (largely intellectual property related) into a single morning through short, sharp presentations. This year’s keynote speaker was Kimberley Taylor an inspiring, young businessperson who has created Loop, a groundbreaking logistics company, and Stephen Key, a renowned, US-based inventor and author who is passionate about helping others create value out of their innovations through inventRight.

The recordings have been made available and are now shared with you by Afro-IP. Enjoy!

Main Conference Room

Adams & Adams Crammer™ 2022 Case Law Review - Panel Discussion

Plenary Speakers: Kimberley Taylor and Stephen Key (click on links below for presentations)

Breakaway Room 1

Adams & Adams Crammer™ 2022 High maintenance – Intellectual property laws and regulations relevant t
o Cannabis in South Africa

Adams & Adams Crammer™ 2022 It’s getting hot in here: the effect of environmental sustainability on stakeholders

Adams & Adams Crammer™ 2022 Funding I.P. and R&D

 

Breakaway Room 2

Adams & Adams Crammer™ 2022 Security is a priority, not an option: outlook of insurance landscape post the storm

Adams & Adams Crammer™ 2022 Robots Inventing

Adams & Adams Crammer™ 2022 The Hype about the Meta Verse

 

Breakaway Room 3 

Adams & Adams Crammer™ 2022 For the love of Chicken!

Adams & Adams Crammer™ 2022 Do you know who owns the copyright to your house?

Adams & Adams Crammer™ 2022 The influence of data protection and privacy law on mergers and acquisitions

 

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The art of sharing: 10 tips for writing blog posts and newsletters

The art of sharing: 10 tips for writing blog posts and newsletters

By Afro Leo   Wednesday, May 11, 2022   No comments:

Sharing information on just about anything, particularly an esoteric subject like intellectual property in Africa is so important because it creates awareness, educates, and ultimately stimulates the market and interest in that subject. For the sharer or writer, the exercise is a worthwhile investment; it improves writing skills, understanding, profile, networks, work generation and can be quite cathartic. Yet, the way in which information is shared plays an important role in maximising the return on that investment. Here are 10 tips for improving blog posts and newsletters. 

                                  

1.      Focus on what’s important, upfront

What is the main thrust of the article, news report or clip that you want to share? Incorporate this in the first para to your post or intro, either through a quote from the article or in your own words.

Example: TYPO has recently released its findings on the success of the FORGOTTO system. According to the report “66% of users applying for applications find it time consuming and frustrating” ….

2.      Summarise the content or what is covered by the article

The purpose of your share is to introduce and then give the reader more information on what the article is about. Your post or content should be able to stand alone as a summary of what is contained in the article, inviting the reader to research further by reading the article. In this way, it should function as an executive summary with an option to link to the article for further reading. Use headings, subheadings and bullet points to make it simple and concise.

This section, often a second para, could read: [subheading] The TYPO report canvasses the entire application process including application, publication, and registration. It also covers user feedback on pricing and a useful comparative report against user feedback on the LEKKA system as well as the following: [bullet points]. In general, FORGOTTO is not as functional or useful as the LEKKA system, according to the report. You can read more about the findings here (link).

3.       Add value: ask a question or give an opinion or add additional information

Everyone can share but the difference between an aggregator and a thought leader is the value they then add. It needn’t be profound or lengthy. Often, just a question or statement on the article is sufficient for the reader to start thinking more deeply about what he or she is reading.

Example: One wonders if the FORGOTTO system was electronic and had a dedicated helpline, the experience of the user would be improved (blog post) or we are assisting FORGOTTO create a more user-friendly application system by offering them IT support training and user support (newsletter).

4.      Add value: provide further information, links, and sources

Your opinion does not sit in a vacuum and itself can lead to debate, discussion, or contemplation. Invite the reader to other sources on the topic. Not only does this give them the impression that you are well read (giving gravitas to your question or view) but it creates trust and a deeper understanding to the topic.

You can read more about this development here and here (with links). In this article (link), the findings of the TYPO report are celebrated, and this article (link) advocates for a paper-based system for the FORGOTTO initiative.

For more tips on blog writing click here.

5.      Treat news articles and even those from law firms, with caution

Try to quote and share from credible sources. Fact-check articles you link to as much as possible. Time is often a problem so use common sense, read critically, and adopt a third-party stance using quotes, if in doubt.

This article from ADOPT & ADOPT reports that “80% of IP rights holders have enforced their rights in Africa” and then don’t be afraid to question the statement. This statistic does seem high given the 2018 ELIO report (link) which gave a low score to user confidence on the enforceability of IP rights on the continent (see 3 above).

6.      Link to articles and content in the correct way

This indicates respect and of course would be particularly ironic for a law firm or lawyer to err on. This means using quotes, linking to the article, and acknowledging the author. It also means quoting only what is necessary (see 1 above) for the purpose of the post or content. Be aware that photographs may have different copyright owners and you may not be able to determine who owns the copyright in a photograph. In this situation rather do not use the picture (see 9 below).

You can read the full article authored by Munchkin & Munchkin here (link).

7.      Be consistent if quoting different styled texts

Sometimes a blog post or newsletter requires linking and commenting on a variety of articles written in different styles. The important aspect here is to be consistent in how your report, share and comment on them. The way in which you use dates, currency, quotes, and the style of comment should be consistent. For a firm newsletter, it is often quite factual and professional. For a blog post, it may be that you can have more of a personal touch (indeed, that can add value and create interest). If you use currency, try to convert it to one which your audience will understand e.g., dollars, if international.  

8.      Plain English please

No latin (court aquo, causa, mero motu, verbatim, dies non, quid pro quo, bona fide, inter alia). No jargon unless the meaning is clear from the context (the matter, confusing similarity, the registrar, class 31, the bench, appellant). No proper nouns unless they are proper nouns or defined (judge, intellectual property rights, applicant, appellant, court). No redundant words or phrases (in order to, in relation to, in respect of, true facts, small in size, consensus of opinion, past history). Avoid Shakespearian words (hereinafter, herein, wherefore etc). Generally, one sentence one thought. No cliches (live to fight another day, can of worms and … my favourite – “be that as it may” comma).

9.      Headings and pictures are important

[licensed on a free to use basis]

Headings and pictures capture the reader. It is these two features of the content that get replicated on social media, in aggregated content and are most likely to attract interest. Choose them carefully and only after the post is written. Rather delay a post for decent picture than publish it without one but be copyright aware (see 6).

10.  Be authentic

Authenticity and true sharing will develop trust and readership. Although self-congratulation is frowned upon, done appropriately it can develop a following and add to authenticity. Don’t be afraid to congratulate others, even competitors where it is due. Tag authors whose content you have used and be true to your objective, which should be a service to the client or community – in this case you!

E.g., I sincerely hope these ten tips have been helpful. They are not made up I can assure you! They are inspired by reader criticism measured in over 1 million pageviews of over 1000 posts and articles written by yours truly on Afro-IP, IP Finance, Oxford University Press, World Trademark Review, firm blogs and other publications - the output of a labour of love over many years. And now shared with you, with love.

Afro Leo

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South Africa: Not so good for the SOUL

South Africa: Not so good for the SOUL

By Darren Olivier   Thursday, March 17, 2022   No comments:

A recent feast on three fast food decisions of the South African High Courts has, unfortunately, been a very underwhelming experience. Golden Fried Chicken, owners of the well know local Chicken Licken franchises sought to enforce their SOUL registered trade marks against three different uses in three different divisions of the local High Courts:

In each of the three divisions, the primary infringement claim was rejected. Where a counter claim was raised against the descriptive nature of SOUL (as in e.g. soul food), the argument was found to have some merit but nonetheless rejected, and there was even a finding that the mark SOUL was well known for the purposes of dilution (which was then summarily dismissed). 

It should be appreciated that all three cases were brought on trade mark infringement grounds alone, and did not include passing off and unlawful competition, yet in all three cases, the court erred in the basic application of the infringement test by comparing the use made by Chicken Licken with the offending use i.e. a passing off type test, in finding that a likelihood of confusion did not exist between the marks. 

The high oil mark, so to speak, is the final paragraph in the Kwazulu Natal case where the judge introduced the concept of “ubuntism” (the spirit of humanity) by suggesting that Chicken Licken, should, in the national interest, encourage rather than restrain use of SOUL, and that small businesses should be protected from trade mark infringement claims of larger organisations! 

Whether or not you agree that any single proprietor should have exclusivity to SOUL for restaurant services or food, the reality is that, absent a successful or part cancellation claim, Chicken Licken have registered trade marks for the full gamut of “restaurant services” (which includes Greek restaurant services, café services and kitchen services) that attracts certain rights. These rights are to be able to stop identical and confusingly similar marks. On a basic application of the infringement tests SOUL SOUVLAKI, OH MY SOUL and SOUL KITCHEN (including logo marks) are simply, dead meat and should be capable of being stopped.

Why then were the judges so reluctant to grant the interdicts. Was it because Chicken Licken was too aggressive and corporate against likeable cottage style eateries? Was it because exclusivity in SOUL just feels wrong? Was it because the infringement test as constructed and set out in Plascon Evans (SA leading case) and others, easily leads to conflation and confusion, especially for judges who do not adjudicate trade mark cases on a consistent basis.

One gets the sense that the answer to all of these questions may have been “yes” because in some places, the findings are difficult to reconcile and in other places just downright wrong. But, in my humble opinion, the answer to the final question is the most emphatic “yes!”. If one takes the time, in the pleadings and the judgement, to break down the Plascon Evans test into its individual components and apply them step-by-step (an approach long advocated by this blog - see here), the chances of tossing the equivalent of a frozen chicken leg into super hot oil in a trade mark judgement, are reduced significantly. 

• Link to cases here, here and here.

• Link to my notes with references to S35 tests, a breakdown of their application and a high level summary of where the judges erred.
• Afro-IP's coverage of the SOULSA decision in 2009.

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