- There was a failure of the tribunal to consider principles of competition law in determining the royalty;
- The tribunal’s authority to make a ruling only triggered once the retailers had established that the tariff was unreasonable which they had not done. This was effectively an argument based on onus and jurisdiction of the tribunal which SAMPRA thought had been misconstrued; and
- That the retailers were obliged to disclose the Rand value derived from the use of the sound recordings, which they had not done, in determining the reasonableness of the tariff
Afro Leo thinks that this is the correct ruling and wonders whether the court would take such a pragmatic approach to the evidence required to prove economic harm in trade mark dilution cases. Another reason why it seems correct is that in the Copyright Act, there exists a concept of a reasonable royalty in lieu of showing damages; implicitly recognising the difficulty of showing actual damage.