Wednesday, 16 April 2008

South Africa - new article on trade-mark use

The Comparative and International Law Journal of Southern Africa (CILSA for short) is not the first point of reference for trade-mark matters. However, the November 2007 issue (vol XL no 3), now out in print form, contains an article titled 'Limiting the trade-mark monopoly: the nature of infringing use' written by South Africa's most respected trade-mark academic, Professor Brian Rutherford from the department of Mercantile Law, UNISA. Non-subscribers can contact the journal editor at bothanj@unisa.ac.za for a pdf version of the article. The abstract reads as follows:
"Motivated by the concern of creating an unwarranted monopoly, recent decisions in Europe and South Africa have imported certain restrictions into the current trade-mark infringement provisions. These restrictions are intended to limit the infringement rights of trade-mark proprietors. This is particularly evident from the definition of infringing use adopted by the courts. This article compares the approaches adopted in Europe and South Africa. Like the British House of Lords, the South African Supreme Court of Appeal has adopted a narrow traditional approach in defining infringing use which is at variance with European jurisprudence and the TRIPS Agreement. Also in line with developments in the United Kingdom, onerous requirements for establishing trade-mark dilution have been imposed".

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