April 2015


Editor's Note - April 2015 Editor's Note April 2015

Each year without prejudice carries three Top Student features: those who graduated the previous year, five year's on and 10 year's on, although not in that order. This year NWU Potchefstroom is included and so the reach of the magazine grows. We were disappointed not to be able to accommodate UNISA which expressed an interest in being included but the audit of their results takes place at the end of March and so precluded those top students from participating in the feature.

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The wrong crowd Intellectual Property April 2015

It's good enough for much of the developed world, including the USA, the EU, Australia, Japan, Korea, Singapore and Switzerland. Yet it's not good enough for us.

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Saving the rhino Intellectual Property April 2015

Any harm done to a rhino will certainly be frowned upon by the South African legal system. But consider this variation on the theme. AB, an eccentric millionaire, concludes an agreement with ED, an artist, for the creation of a sculpture of a rhino. ED duly completes the sculpture, delivers it to AB, and receives payment. AB, however, decides that he would prefer to have a sculpture of a warthog. He makes it known that he will have the rhino sculpture chopped up into small pieces. ED adopts the position that AB is not entitled to do so, as destruction of the rhino will infringe or in fact destroy his intellectual property rights.

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Desperate times call for . . . medical innovation Intellectual Property April 2015

On 26 October 2014 Gordie Howe (86), better known as "Mr Hockey" in Canadian ice hockey circles, suffered a debilitating stroke that left him bedridden and barely able to eat or talk. Early in November, he suffered another stroke. But within days after receiving stem cell treatment he miraculously recovered to the extent that he could mobilise independently, recognise speech forms such as proverbs and idioms, interact more and was less difficult to understand.

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Change on the way Intellectual Property April 2015

Since 1983 three of the major IP Offices – the United States Patent and Trademark Office (USPTO), the European Patent Office (EPO) and the Japanese Patent Office (JPO) – co-operated on harmonisation and matters of mutual interest. In 2008 this group was expanded when the patent offices from Korea (KIPO) and China (SIPO) joined to form the IP5.

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To be written or not to be written? Intellectual Property April 2015

There are a number of advantages for a trade mark owner in licensing its trade mark. These include expanding the territoriality of the brand, increasing sales and revenue, increasing brand awareness and ensuring that the trade mark satisfies the use requirement so that it does not become vulnerable to cancellation on the grounds of non-use. What is important to know is that it is not a requirement in South African trade mark law for a license agreement to be reduced to writing so a license agreement can be tacit, oral or written. All are valid and the only difference between them is the degree of ease with which one can prove its existence and thereby its validity.

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All that glitter is not gold – or platinum Intellectual Property April 2015

In recent judgements handed down by the Supreme Court of Appeal in trade mark infringement matters relating to similar goods and services, it is clear that in terms of s34(1)(b) of the Trade Marks Act (194 of 1993) a high similarity in marks cannot overcome a total dissimilarity of goods or services.

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Kenya Focus: Weetabix and Sony decisions show progress of Kenyan courts Africa April 2015

Two recent IP decisions in Kenya illustrate the continued emergence of a strong IP enforcement culture in Kenya.

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The VAT vendor conundrum Tax April 2015

The basic principle of Value Added Tax (VAT) is that a vendor must account to the South African Revenue Service (SARS) for output tax on taxable supplies made after deducting any input tax incurred by him. However, if a vendor collects the VAT and does not pay it over to SARS but uses it for another purpose, can he be charged with the common law crime of theft?

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State Bank of India case Contract Law April 2015

Demand guarantees provide parties with simple and immediately enforceable security for the fulfilment of a counterparty's contractual obligations. Traditionally, there have been very limited grounds upon which a party may challenge a demand made against this form of security. However, the Supreme Court of Appeal has recently cast doubt over the robust nature of demand guarantees.

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Yes, I have read the terms and conditions Contract Law April 2015

English stand-up comedian Eddie Izzard once said "No one in the universe has read the terms and conditions". He was of course referring to the terms and conditions of iTunes which we all blindly accept in the "ordinary course of our social business". He went on to say "anything could be in the terms and conditions, we can take your buttocks and sell it to the Chinese, fine fine, we are going to rearrange your toes and number them, yes yes, we are going to put your underpants in hedges around the world, yes fine". Although I do not suspect for one minute that a reputable company such as Apple Inc. would ever contemplate selling our collective buttocks to the Chinese, Mr Izzard does make a good point; we truly have no clue what we are agreeing to.

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Tourism fall-out Platteland Perspective April 2015

Tourism is hugely important in much of rural southern Africa, and so stories about the legal fall-out when tourist's experiences go wrong fascinate Bra Jakkals. Like this one, when a Swiss tourist thought he was completely covered, with the best insurance money could buy, for his safari holiday of a lifetime. Wrongly, as it turned out.

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Quo Vadis – Mining in Africa – a matter of principle Mining Law April 2015

Wither goest mining in Africa? This was the question posed and debated at the "Invest in Mining in Africa Indaba" held in Cape Town in February.

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Short sighted view of long-term needs Property Law April 2015

President Jacob Zuma delivered his State of the Nation Address (SONA) on 12 February. The evening was marred by controversial events, ranging from opposition MPs being forcibly removed from parliament to cell phone signals within the building being jammed. There is no doubt that the SONA 2015 raised more questions and concerns regarding South Africa's current social and economic climate than it offered reassurance to citizens and investors that pragmatic solutions to the country's challenges are being implemented.

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