Trade Marks in South Africa - the 1993 Act

Introduction

The Trade Marks Act No. 194 of 1993 ("the Act") has had a particularly long gestation period.

The draft Trade Marks Bill was published for comment on 31 August 1991 which is a date of some significance when it comes to the protection of well-known trade marks discussed below.

Thereafter, after considerable comment and changes to the original bill the Trade Marks Act No. 194 of 1993 was published on 5 January 1994. In terms of section 72 thereof it was said to come into operation on a date fixed by the State President by proclamation in the Gazette. The new Act is expected to come into force on 1 April 1995.

Given the long lapse of time between the original conception of the Act and its birth, the reasons for the new Act have been largely forgotten. While it is not our intention to dwell on these reasons some historical background would be apposite.

The repealed Act (No. 62 of 1963) was outdated in a number of respects; in particular the licensing provisions and the definition of a trade mark. It also lagged behind developments in the international community and given the fact that trade mark law plays an integral part in international trade it is important that South Africa keeps abreast of such developments. In particular, the most important developments on the international front which influence the new Trade Marks Act are the European Directive on Trade Marks and the Uruguay round of the negotiations on the General Agreement of Tariffs and Trade (GATT), especially its annex III that contains the Agreement on Trade - Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods (TRIPS). The purpose of the aforementioned two agreements was to harmonise trade mark laws of the signatories to the agreements. As the repealed Trade Marks Act did not meet all these requirements, changes were required to our existing trade marks legislation. Critics of the Act argue that amendments to the repealed Act would have sufficed but, rightly or wrongly, the new Trade Marks Act is now a fait accompli and, rather than to dwell on the past, we must consider how it will affect trade marks in South Africa in the future.

With effect from 1 April 1995 all new matters before the Registrar of Trade Marks or the Courts will be regulated by the new Act and the purpose of this seminar is to inform you of the salient features of the Act from a practical perspective. Thus, while it will inevitably be necessary for us to refer to certain sections of the Act, we intend to concentrate on what the immediate practical effect of such sections will be rather than to analyze the wording of the sections from a lawyers perspective.

The two main aspects of trade mark law which affect one in practice are:

What is a registrable trade mark?

What remedies does a registered trade mark afford the trade mark proprietor?

There have been significant changes to both these concepts as appears from what follows.

1. Definition of a Trade Mark

The most important aspect of the new definition of a trade mark is that it omits reference to "indicating a connection in the course of trade" and stresses the distinguishing function of a mark by defining a trade mark to mean:

"A mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person"

Thus the emphasis has shifted from the function of indicating a connection in the course of trade (an origin function) to that of distinguishing the goods or services in relation to which the trade mark is used or proposed to be used (a distinguishing function).

While much has, and no doubt will in the future, be written about the function of a trade mark, for our purposes the most important effect of the new definition of a trade mark is the effect it has on

2. Licensing

Under the repealed Act the registered user provisions were totally inflexible with unfortunate, and commercially unrealistic, consequences. Simply put, only use by the trade mark proprietor himself or a duly recorded registered user constituted permitted use. The practical effect of this was that in circumstances of use in the absence of a registered user recordal, whether or not a de facto licence agreement existed, a trade mark used by a licensee would be vulnerable to attack on the following grounds:

That it had been used deceptively.

That there had been no use by the proprietor or a permitted user.

The new Act recognises that a de facto licence will suffice i.e. the mere fact that the trade mark proprietor fails to carry out the procedural step of filing a registered user application will not prejudice him if a de facto licence (control) exists.

In circumstances where usership is an issue the new Act still makes provision for a registered user recordal. The following advantages are gained by recording a licensee as a registered user of the trade mark under the new Act:

The recordal is prima facie evidence of permitted use;

The registered user will have locus standi to bring infringement proceedings in his own name.

3. What Constitutes a Mark?

The scope of what constitutes a mark has been considerably broadened so as to include:

"Any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or combination of the aforementioned"

It is to be noted that the aforementioned definition is not exhaustive and, in particular, the shape and colour of goods are specifically recognised as constituting a mark. Furthermore, as any sign capable of being represented graphically constitutes a mark, theoretically, even sounds and smells (which, I am told, can be represented graphically), could be registered.

Thus, the anomalous situation where the shape of the Weber kettle braai was found by the Appellate Division not to qualify as a trade mark under the repealed Act, in circumstances where it was accepted that the shape was de facto distinctive, will fall away.

In keeping with our aim of analyzing the new trade marks Act from a purely practical perspective I submit that the effect of the new definition of what constitutes a mark is that everything which in fact distinguishes one product from another, and which can be represented graphically (i.e. can somehow be described in the register of trade marks) will constitute a mark under the new Trade Marks Act.

4. Registrability / Distinctiveness

While the scope of what may or may not constitute a trade mark has been broadened, the fundamental principle of trade mark law, the question of distinctiveness, remains.

In order to be registrable, a trade mark must be capable of distinguishing. A mark will be considered to be capable of distinguishing if, at the date of application, it is inherently capable of distinguishing or it is capable of distinguishing by reason of prior use. As the register is no longer divided into Parts A and B a mark which is only capable of distinguishing by reason of prior use will only qualify for registration once evidence of such prior use is filed at the Trade Marks Office.

It is extremely difficult to define what the term "capable of distinguishing" means and the best we can do is to state that the trade mark must not be "devoid of any distinctive character". An invented word such as KODAK is clearly capable of distinguishing while EXCELLENT is clearly devoid of any distinctive character. Many trade marks fall between these two extremes and surnames, geographical names and two or three letter trade marks fall in this grey area.

Surnames will create a considerable problem. Under the repealed Act, surnames were generally registrable in Part B of the register only to be elevated to Part A with evidence of use i.e. where the proprietor had proved acquired distinctiveness. As we now no longer have the distinction between Parts A and B of the register this "halfway stage" no longer exists. Obviously no difficulty is created where a surname has been used as the applicant for registration would be able to show that the trade mark has become capable of distinguishing by reason of prior use. Where there has been no prior use, the only basis under which a surname can be registered is if it is "inherently capable of distinguishing". It would certainly be a radical step if the Registrar were to hold that all surnames are inherently capable of distinguishing thereby allowing a trader, who may not even have the particular surname, to register it, thereby prejudicing other traders having that surname. On the other hand, if registration is refused, it places a bona fide trader in an invidious position as he must elect how much prior use would be sufficient to prove that the trade mark has become capable of distinguishing through use. Regrettably, an applicant for registration cannot rely on use made subsequent to the filing date of the application in support of the application.

Adopting a pragmatic approach it appears that a common surname, such as SMITH, for common goods, such as clothing, would not be capable of distinguishing without prior use. The same surname might, however, be capable of distinguishing in respect of highly specialised goods such as nuclear reactors. Likewise, a rare surname might be capable of distinguishing common goods. Furthermore, it is only when the mark is in its ordinary signification a surname that problems arise.

It will only be in a few years time, after the Registrar has established his practice and the Courts have dealt with appeals against decisions by the Registrar, that clear guidelines will be known. In the meanwhile, our advice is that one should file applications for surnames and other marks which fall in the grey area in the hope that they will be found to be registrable. If, however, they are refused registration it might be necessary to re-file the application but, at that later date, one would be able to rely on the intervening use which has taken place.

We might add that it is somewhat anomalous that in terms of the proviso to section 10, a trade mark proprietor may rely on use made of his trade mark between the date of the application and the date of the rectification proceedings as a defence to such proceedings brought against the trade mark on the grounds that it is non-distinctive while, as we have said above, he may not rely on use between the date of filing the application and the date of examination by the Registrar in arguing acquired distinctiveness.

5. Unregistrable Trade Marks

The new Trade Marks Act sets out 17 grounds for refusal of a trade mark. These grounds can be broken down into two sub-sections namely absolute grounds for refusal and relative grounds for refusal (where extraneous factors are involved). Two new relative grounds of refusal have been introduced, namely the protection of well-known trade marks and the dilution provision.

5.1 Absolute Grounds for Refusal

The new Act states that a mark which:

"Consists exclusively of a sign or an indication which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of the goods or services, or the mode or time of production of the goods or rendering of the services"

shall not be registered as a trade mark. While the new Act is couched in different terms to the repealed Act it is felt that, in practice, the same general principles will apply.

This section covers things such as obviously descriptive terms like "WOOL" for clothing, "EXCELLENT" and "BIG" for any goods, "SIX PACK" for beers, "DRIVE" for cars, "FREE" for any goods, "SCOTLAND" for whisky, "HANDMADE" for any handmade goods etc.

Other examples of where a trade mark would not be registrable are:

Where the trade mark consists exclusively of a sign or an indication which has become customary in the current language or in the bona fide and established practices of the trade i.e. where the trade mark is generic such as WINDSURFER, THERMOS, ASPIRIN, JACUZZI, HOOVER, XEROX etc.

Where the applicant for registration has no bona fide claim to proprietorship or where the application for registration was made mala fide.

Where the applicant for registration has no bona fide intention of using the trade mark. The similar provision under the repealed Act also affected an applicant where he intended to use the trade mark, not himself but through a licensee as where the licensee was not simultaneously recorded as a registered user the trade mark would be potentially vulnerable to expungement on these grounds. With the relaxation of the licensing provisions the intention to use a trade mark by an unrecorded licensee would suffice. This requirement is also satisfied if there is an intention to use the trade mark through a body corporate about to be formed.

A mark which consists exclusively of the shape, configuration or colour of goods where such shape, configuration or colour is necessary to obtain a specific technical result. Thus, while the broader definition of mark accepts that the shape, configuration or colour of goods may constitute a trade mark it is stressed that where these factors are "functional" they would not be registrable.

A mark which contains the coat of arms, seal or national flag of the Republic. The new South African flag is frequently used in a commercial context and it must be stressed that without governmental authority no trade mark will be registered which incorporates the new flag. We might add that, in terms of the Merchandise Marks Act, the use of the flag by any person in connection with his trade, business, profession or occupation or in connection with a trade mark, mark or trade description applied by him to goods made, produced or sold by him without authority constitutes an offence.

A mark which contains any word, letter or device indicating State patronage.

A mark specified in the regulations as being a prohibited mark, for example the symbol . A mark which consists of a container for goods or the shape, configuration, colour or pattern of goods, where the registration of such mark is or has become likely to limit the development of any art or industry.

5.2 Relative Grounds for Refusal: Conflict with Existing Rights

Apart from the above grounds, a trade mark will also be unregistrable if it conflicts with existing rights of another trade mark proprietor.

Thus, as was the position under the repealed Act, a trade mark which is likely to deceive or cause confusion with a registered trade mark of a different proprietor is unregistrable, unless the earlier proprietor consents to such registration. The fact that the consent of the earlier proprietor can override the Registrar’s objection is a feature of the new Act which did not exist in the repealed Act. This is to be welcomed as it removes the frustration experienced in practice under the repealed Act in circumstances where the proprietor of the "conflicting" trade mark has no objection to the co-existence of the marks on the register (often in circumstances where similar arrangements have been reached worldwide) but, despite this, the Registrar insisted that the trade mark in question may not be registered, thereby overriding the commercial interests of the parties in question for the perceived "general interest of the public".

As before, prior common law rights also pose a bar to registration. Thus, in circumstances where the proprietor of an unregistered trade mark can show that the use of the mark applied for would be likely to deceive or cause confusion, the application will be unregistrable.

The procedure whereby two conflicting pending applications were both refused registration under the repealed Act until the rights of the parties had been determined (the so-called 17(3) proceedings) has no counterpart in the new Act. The application with the earlier filing date will prevail unless the applicant for the later trade mark proves that this would be contrary to his existing rights.

While the wording and the structure of the Act has changed, the practical effect of the new provisions dealing with conflicting trade marks is no different to that pertaining under the repealed Act. We accordingly recommend, as we always have, that trade mark searches are conducted prior to filing to ensure that no prior conflicting marks are on the register. An availability search does not, of course, reveal any unregistered trade marks and it is accordingly important for an applicant for registration to advise us if he is aware of another party’s trade mark which is in use and which might pose an obstacle to his application.

5.3 New Relative Grounds for Refusal - Dilution and Internationally Well-Known Trade Marks

The need for such full disclosure on the part of a prospective trade mark applicant is greatly increased by reason of two entirely new provisions in the new Trade Marks Act namely:

The protection of well-known trade marks

The dilution provisions

In the case of protection of well-known trade marks no registration is required and in the case of dilution, while a registration is required it need not be in respect of similar goods than that covered by the application. We elaborate on these two issues below:

5.3.1 Protection of Well-Known Trade Marks The protection of well-known trade marks is in keeping with South Africa´s obligations in terms of section 6 bis of the Paris Convention for the Protection of Intellectual Property. In terms of section 10(6):

"A trade mark application which constitutes, or the essential part of which constitutes a reproduction imitation or translation of a trade mark which is entitled to protection under the Paris Convention as a well-known trade mark and which is used for goods or services identical or similar to the goods or services in question will be unregistrable."

This is an important departure from our common law in that the protection is afforded whether or not the person claiming entitlement to the well-known trade mark carries on business or has any goodwill in South Africa.This differs from previous case law in the TIE RACK and the VICTORIA’S SECRET cases where no protection was afforded to the proprietors of the foreign trade marks TIE RACK and VICTORIA’S SECRET because they had not carried on business or had any goodwill in South Africa.

The effect of this provision, and the corresponding infringement provision, will to a large extent put a stop to the popular South African pastime of filching foreign trade marks. It is surprising just how many trade marks in South Africa are copied from overseas trade marks, especially in the clothing and leisure industries. The situation was exacerbated by sanctions, during which time persons sought to justify such conduct by stating that the foreign proprietor would not be doing business in South Africa in any event. In the era of the new South Africa where we want to encourage foreign investment and reinvestment it would be an anachronism for South African traders to continue getting away with the filching of foreign trade marks. In the circumstances the introduction of the protection of well-known trade marks is to be welcomed.

A reprieve, which could be called the "Woolworths amendment", has, however, been built into the new Act as the provisions do not apply to persons who adopted well-known trade marks in South Africa prior to 31 August 1991. This is the date that the draft bill was published, thereby giving notice of the fact that well-known trade marks were to be protected in the future.

The degree of reputation required to prove what trade mark is well-known will no doubt be settled by judicial interpretation. Certain trade marks which, to our knowledge, have never been used in this country but would possibly qualify are:

  • McDONALD’S
  • AT&T
  • SAINSBURY
  • 7-ELEVEN
  • PLANET HOLLYWOOD

There will, however, be grey areas and it must be remembered that the mere fact that a trade mark is known in an overseas jurisdiction does not preclude the applicant from obtaining the identical trade mark in South Africa - the test is that the mark must be well-known in South Africa.

5.3.2 Dilution

This provision has been included in the Act to prevent the dilution of the distinctive character or reputation of an existing well-known registered trade mark notwithstanding the absence of deception or confusion. The critical wording of the Act is that the mark must be:

"Identical or similar to a trade mark which is already registered and which is well-known in the Republic, if the use of the mark sought to be registered would be likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the registered trade mark, notwithstanding the absence of deception or confusion."

A classical example of dilution is the use of the trade mark ROLLS ROYCE in respect of practically any goods or services. As with the protection of internationally well-known trade marks as discussed above, it would be incumbent upon the trade mark proprietor seeking protection under the dilution provision to prove that his trade mark is well-known. As before there are certain obvious examples of well-known trade marks such as:

  • COCA COLA
  • KODAK
  • MARLBORO
  • LEVI´S

but, for the rest, judicial interpretation will determine how broadly this concept will be interpreted.

6. Defensive Registrations

There is no provision for defensive registration of a trade mark under the new Act. However, existing defensive registrations may not be removed on the grounds of lack of intention to use, or non-use, over a ten-year period i.e. until 1 April 2005. Thereafter, all defensive registrations will be vulnerable to removal from the register on these grounds.

7. Certification and Collective Trade Marks

The new Act has retained certification trade marks and it is still a prerequisite for a certification mark that the applicant himself must not have an intention to use the mark (i.e. he simply acts as the certifying body). Examples of certification marks are marks like the Wool Board and Cotton Board marks, the Real Dairy mark etc.

The new Act now makes provision for the registration of collective trade marks. A collective trade mark is a mark capable of distinguishing goods or services of persons who are members of any association from goods or services of persons who are not members thereof. Geographical names and other indications of geographical origin are registrable as collective marks. Thus, for example, the association of wine farms making up the Stellenbosch wine route (assuming that there is such an association), would be able to register "STELLENBOSCH WINE ROUTE" as a collective mark, despite the geographical significance of the mark.

8. Assignment and Hypothecation

Trade marks can be assigned either with or without the goodwill of the business concerned in the goods or services in respect of which the trade marks have been registered. The Registrar, however, no longer requires the assignee to record whether the assignment is with or without goodwill, a relaxation which is to be welcomed as, in practice it is not that easy to determine whether an assignment has been with or without the goodwill of the business.

An innovation in the new Act is a provision for the hypothecation of a registered trade mark by means of a Deed of Security. Once a Deed of Security has been lodged with the Registrar and the register has been endorsed to that effect, the Deed of Security will have the effect of a pledge of the trade mark to the person in whose favour the Deed of Security has been granted. This means that the pledgee of the registered trade mark will have real security over the registered trade marks. Assignments or transmissions of a registered trade mark are subject to Deeds of Security and a trade mark may not be assigned or transmitted without the written consent of a person in whose favour a Deed of Security has been granted.

9. Trade Mark Opposition and Rectification Proceedings

The new Act makes provision for opposition against a pending trade mark application and expungement of a registered trade mark. A trade mark may be opposed on the basis of any of the grounds mentioned above as to what constitutes an unregistrable trade mark. A registered trade mark may be expunged on any of the aforementioned grounds as well as on the grounds of non-use where it has not been used for a continuous period of 5 years from the date of the issuing of the certificate of registration. Under the repealed Act the 5 year period ran from the date of application which has effectively given most trade marks a two and a half year reprieve (the average time between the filing of an application and the issuing of the certificate of registration is about two and a half years).

A consequence of doing away with Part A and Part B of the register is that the seven year protection clause of the repealed Act falls away. In terms of this clause a trade mark registered for more than seven years could only be expunged on certain grounds and, in particular, could not be expunged on the grounds that it was not distinctive. Any trade mark, whether registered under the repealed or new Acts, will now always be open to attack on the grounds that it is non-distinctive. Under the new Act, however, a trade mark proprietor can meet an attack based on non-distinctiveness by showing that the trade mark has become capable of distinguishing as a result of use made of the mark by the time of the application for removal from the register.

It is important to note that the validity of the original entry of a trade mark on the register will always be determined in accordance with the laws in force at the date of such entry. Thus, while the new Act regulates all the procedural steps of opposition or rectification proceedings, the provisions of the repealed Act will continue to play a role as the grounds of opposition for a trade mark registered under the repealed Act will have to be based on the provisions of the new repealed Act.

There have been some important procedural changes in the new Act.The most important change is that the notice of opposition or rectification must be supported by an affidavit as to the facts upon which the applicant relies for relief. This is in keeping with normal application proceedings before the Supreme Court. Wherever possible the trade mark regulations follow the Supreme Court rules, allowing the Registrar to rely on the considerable body of Supreme Court case law in matters before the Registrar.

It is hoped that the practical effect of the new regulations relating to opposed proceedings will be that inordinate delays currently experienced between the advertisement of an application and the hearing of the matter by the Registrar of Trade Marks will be reduced considerably. Furthermore, under the repealed Act, because the filing of the Notice of Opposition did not include the considerable expense of the preparation and filing of the evidence, the filing of a Notice of Opposition was often used as a form of brinkmanship. It is hoped that under the new proceedings such frivolous threats of opposition will no longer play a role.

The same principles apply, mutatis mutandis, to rectification proceedings before the Registrar.

10. Trade Mark Infringement

The structure of the infringement provisions in the new Act has changed from the old Act and the section which deals with infringement of a registered trade mark, is broken down as follows:

The first sub-section sets out the three grounds of infringement.

The second sub-section then sets out six exceptions to the aforementioned three grounds.

The third sub-section sets out the remedies for trade mark infringement.

What could be termed classical trade mark infringement under the repealed Act is retained. This is use of a confusingly similar trade mark in relation to goods or services in respect of which the trade mark is registered. Nothing more need be said about this provision other than to stress that it can be relied upon to preclude comparative advertising - an issue which has received a fair amount of confusing press coverage lately.

The first innovation of the infringement provisions is that trade mark infringement is no longer limited to the actual goods or services in respect of which a trade mark is registered but also covers similar goods.

Judicial interpretation will determine how broad our courts are prepared to go in deciding what constitutes similar goods or services. As the new Trade Marks Act is still in its infancy we’ll consider a trade mark registration for nappies to illustrate the practical advantage of extending infringement provisions to similar goods. Assume that a company which has been making nappies for many years has a registration for its trade mark in class 25 covering "cloth nappies" which fall under the general clothing category. This classification goes back many years and no doubt well before the advent of disposable paper nappies. When disposable paper nappies first came on the market and had to be classified, they were classified on the grounds that, being principally of paper, they should fall in class 16 together with other paper products such as books etc. Under the repealed Act the trade mark proprietor would not be able to sue someone for using the identical, or a similar, trade mark in relation to disposable paper nappies as its registration is limited to cloth nappies in class 25. Under the new Act a court would have no difficulty in finding infringement on the basis that paper nappies are similar goods to cloth nappies.

The next innovation is what is termed the "anti dilution provision". Once again, this type of infringement is not limited to the goods or services covered by the registered trade mark but, in this case, there is the added requirement that the trade mark must be shown to be well-known as discussed above. The classical example of dilution would be the use of the well-known trade mark ROLLS ROYCE in respect of any goods or services. A further example of the dilution provisions would be the T-shirts with COCAINE written on them in the same script as COCA-COLA.

Lastly, the proprietor of a trade mark entitled to protection under the Paris Convention as a well-known trade mark is entitled to restrain the use in South Africa of a trade mark which constitutes, or the essential part of which constitutes, a reproduction, imitation, or translation of the well-known trade mark in relation to goods or services which are identical or similar to the goods or services in respect of which the trade mark is well-known and where the use is likely to cause deception or confusion.

As we have seen, there is no requirement that the proprietor of the well-known trade mark has any goodwill or business in South Africa.

11. Exemptions from Infringement

The exemptions from infringement available to a defendant under the new Act were also, generally speaking, available under the repealed Act. They are, however, listed in a more user friendly way in the new Act and certain types of use, namely to describe spare parts and on parallel imports, is specifically stated not to constitute infringement to remove any doubts on the issue. The Act includes the following exemptions:

The bona fide use by a person of his own name.

The bona fide description of the kind, quality, quantity etc of goods or services.

The bona fide use where it is reasonable to indicate the intended purpose of goods or services. This exemption is aimed specifically at generic parts manufacturers and, for example, a spare parts manufacturer may use the trade mark TOYOTA to describe that his generic piston fits a Toyota motor vehicle.

The sale of goods to which the trade mark has been applied by or with the consent of the proprietor thereof i.e. parallel imports.

The use by someone of his own registered trade mark will not constitute infringement of someone else’s trade mark.

12. Remedies for Infringement

The new Act specifies the remedies available for trade mark infringement while the repealed Act did not specifically provide for the relief which may be granted in cases of infringement. The relief obtainable under the repealed Act was, however, an interdict, delivery up of infringing goods (not in all circumstances though) and damages based on the plaintiff’s loss of profit.

The new Act specifies the following remedies:

An interdict;

An order for removal of the infringing mark from all material or delivery up (where the infringing mark is inseparable or incapable or being removed);

Damages;

A reasonable royalty in lieu of damages.

The inclusion of an interdict as relief in the new Act doesn’t affect the present position in any way but the reference to delivery up and damages do have considerable practical advantages.

Under the repealed Act while a trade mark proprietor has always been able to claim damages it has proven to be impossible in practice to quantify such damages. The introduction in the new Act of the alternative damages claim, whereby damages can be claimed on the basis of a reasonable royalty, is to be welcomed. This is in keeping with the damages provisions of the other intellectual property statutes namely the Patents, Designs and Copyright Acts. The effect of this, to use a simple example, is that if an infringer has manufactured 20 000 T- shirts and the plaintiff can establish that a normal royalty for using his trade mark on the T- shirts would be R5.00, the damages could be quantified at R100 000.00.

Conclusion

As it is our view that the advantages of the new Act clearly outweigh the disadvantages we welcome the new Act for the commercial reality it brings to trade mark law in South Africa which will take us well into the 21st century while keeping us in line with trade mark laws worldwide. There will undoubtedly be some teething problems with the implementation of the new Trade Marks Act but these will be minor and the bona fide trader has little to fear and much to gain. The "fly by night" operators, or those who "sail too close to the wind", on the other hand, might find that their activities are somewhat hindered by the new Act but for them we weep crocodile tears.

Dr Owen Dean

Spoor & Fisher

Date published: 1990/01/01
Author: Dr Owen Dean

Tags: trade marks south africa 1993 act