Sunday, 11 May 2008

OMO seizure not whiter than white

Thanks to colleague Msawenkosi Gaxo (Bowman Gilfillan), Afro-IP has been alerted to the recent decision of The Minister of Trade and Industry and Another v EL Enterprises and Another (15383/2005) [2008] ZAGPHC 130 (6 May 2008). In this decision Judge Poswa, of the Transvaal Provincial Division of the High Court, set aside an application for confirmation of a seizure conducted on behalf of Unilever PLC on the basis that the Dept Trade & Industry had failed to serve the application papers (for confirmation of the seizure) on the respondents within the period of ten days as required, after seizing certain goods without a warrant. The decision turned on the meaning of the phrase “brought within 10 court days” in section 5(4)(a) of the Counterfeits Goods Act. EL Enterprise's (a graphic design company) legal team argued that the phrase meant that the papers (for confirmation a seizure without a warrant) had to be served within the 10 day period. The Dept of Trade & Industry's attorneys submitted that the Act does not require an application to be issued and served and so it was irrelevant that the papers were served after the ten day period. After analysing the cases, Judge Poswa dismissed the application for confirmation with costs. Msawenkosi's summary of the case will be published in Afro-IP shortly.

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