Friday, 1 August 2008

Harms' paper on Transshipment

One of the speakers at the recent "Enforcement Workshop on Combatting Counterfeiting within the SADC" was the Hon Justice LTC Harms (Supreme Court of Appeal), RSA whose paper is entitled Issues of Transit and Transhipment: Legislation and Jurisprudence. Harms is one of the more respected voices on IP in the RSA region and so his conclusions are worthy of note, especially as he may be the adjudicator in your next big IP case in SA.

After analysis of his own judgement in AM Moolla Group Limited v Gap 543/2003 [2004] ZASCA 112, commentary on laws relating to GIs, Artice 51 of TRIPs, prohibitions of designated pesticides in to SA and various EU judgements he concludes that:

"First, there is no clear international standard.

Second, there is no clarity about the justification for customs action in relation to goods in transit or transshipment.

Third, all transshipment cases cannot be dealt with on the same basis.

Fourth, in SA at least, the laws are contradictory and do not take into account the ordinary principles of criminal procedure.

Fifth, customs are not really equipped to deal with the problems.

And last, the issue is more often than not one of fact and not one of law."

Thanks to Quentin Boschoff who attended the workshop, see earlier post here.

No comments: