Wednesday, 21 November 2012

The relevance of International IP developments

I was recently invited to present at a seminar for firm clients on international IP developments in 2012 that are useful to everyday business. This is in turn forced me to consider why would it be useful, for example, to discuss or even mention the Apple V Samsung global IP battle or the Laboutin appeal decision or the latest decisions on the Harmonisation Directive?

South Africans are self sufficient people who improvise by nature and most work in conditions where international practise in the developed world is not always practical or affordable and sometimes, not useful. We are the entrepreneurs of the global economy with a natural aversion to being told what to do or how to do it. All of this can lead to frustration as this amusing letter from US based IP lawyer in 1970 so clearly demonstrates: 

The lawyer accuses the Registrar of Trade Marks at the time as having "not yet climbed out of the slime in which he was spawned..". As I said - it is a delightful read.

As a result, an International Update can easily become patronising or irrelevant unless it truly is useful or interesting  or made relevant for local business people.  

From an IP perspective, we are sometimes obliged to focus on international developments. This is because we have obligations under various agreements and they include TRIPS and Berne that impose minimum standards for our IP laws in return for other benefits, like favourable conditions for international trade and mutual respect for IP.

There are occasions where we are gently (and sometimes, not so gently) persuaded to follow international developments. This was highlighted by the US reaction to the first decision of the High Court (then Supreme Court) when Mcdonalds lost a trade mark battle against a local. South Africa was inserted on the 301 Report for not respecting international IP (see 1995 comments here). Another example is 2010 World Cup where we were persuaded to adopt very strong and new IP laws in favour of sponsors, in return for hosting the tournament.
There are also occasions where we just ought to follow international precedent. We generally recognise the benefit of using and adopting wording and judgements elsewhere, especially in Europe from which most of our IP legislation is taken. The SCA decision is Cowbell, for example, states:

"Albeit in the context of the interpretation of a European Community Council Directive, the European Court of Justice in Sabel (at 223 - 224) made some observations that are pertinent to the present issue:..."

On the other hand, we don’t have to follow anyone. We are a national state with our own laws. There are also times we are gently (and sometimes, not so gently) persuaded against following an international agenda or norms. This was recently highlighted by the refusal to host the Africa IP forum which was due to take place in Cape Town earlier this year due to pressure groups that protested that the agenda lacked sufficient “development focus”.

And finally, there are times when we simply ought not to follow international developments and the best way to illustrate this is by borrowing the message and, ironically, the IP associated with HSBC’s marketing campaign alongside.

However, we also occasionally lead. This year alone two decisions, namely Zonquasdrift (the similarity of "wine" and "grapes" for trade mark infringement purposes currently on appeal) and Zemax (the nature of the consumer when considering pharma drug names) are likely to be cited internationally because they deal with novel concepts (Zonquasdrift) or provide SCA judgements (Zemax) on existing issues that are not settled elsewhere.

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