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Theme 5 (Trade Marks™ (2.1 Governing Act (Trade Marks Act 194 of 1993…
Theme 5
- However, registration is not required
- The owner of a registered trade mark may commence legal proceedings
- A trade mark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. based on colour, smell, or sound.
- A trade mark is a distinctive sign or indicator used by an individual, business organisation, or other legal entity to identify that the products
2.1 Governing Act
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- Commercial symbol or “sign”
- Used on both products and services
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- Made-up (“created”) words
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2.5 Value of a Trademark
- Value of a Trademark lies in:
1.1.To indicate origin (identify owner)
1.2. Indicates quality (e.g. BMW, Rolls-Royce)
1.3. Manufacturer’s reputation linked to the mark
1.4. Valuable for advertising
1.5. To distinguish from other marks
- BUT A TRADEMARK MUST BE DISTINCTIVE!
➢ Common surnames are Not distinctive (e.g. Van der Merwe, but Lalk is!)
➢ Single alphanumeric letters are also not distinctive (but KPMG, BMW is). The “Golden Arches” of McDonalds has become distinctive
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- The following can be protected by copyright:
1.1. Literary works
1.2. Dramatic works
1.3. Artistic works
1.4. Musical works
Movie
- First four are “traditional works”, or “products of skill and labour”
Last one is an “entrepreneurial work”,
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- Under SA Law there is no single law that protects “Intellectual Property”.
- Intellectual Property is a collective term that refers to the protection of a variety of human intellectual endeavours, which are protected under different laws.
- South African laws that are relevant are:
(a) Copyright Act 98 of 1978, as amended;
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1.2 RSA Constitution
- Note that IP rights are not specifically covered by the SA Constitution
- A good example is the much-publicised case of Laugh It Off Promotions CC vs. South African Breweries International BV (CLT4204, SA Constitutional Court)
- Patents are granted for inventions, new technological improvements
- Patents all have the following characteristics
2.1. Issued by a state or other patent office;
2.2. Require that the invention be publicly described
- Regulated in the RSA by the Patents Act 57 of 1978 (but also linked to the Paris Convention and Patent Cooperation Treaty known as the “PCT”).
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