November 2012


From My Window - November 2012 From My Window November 2012

Some years ago I complained bitterly that the Directorate of Special Operations (colloquially, the Scorpions) was being abused by the then National Director of Public Prosecutions, Bulelani Ngcuka, for party political purposes. Those in the ruling ANC who had felt the Directorate's heat, agreed. In time, the Directorate was disbanded.

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Editor's Note - November 2012 Editor's Note November 2012

It is said that the English are obsessed with the weather. Of South Africans it could be said that we are obsessed by energy matters (along with the state of the roads and corruption) and over the past few months without prejudice has carried some interesting articles on the topic. They have not been particularly encouraging.

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Good verdict, dreadful damages Intellectual Property November 2012

All is fair in love and (patent) war but not, apparently, when it comes to awarding damages in patent litigation.

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Strange Bedfellows Intellectual Property November 2012

The legal battle between Apple Inc. and Samsung Electronics Co. can best be described as epic. This war is being fought in a number of countries, including the United Kingdom, Australia, South-Korea, and Japan, not to mention the United States.

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Can you keep a secret? Intellectual Property November 2012

If Intellectual Property is considered the genus, then the Big 5 species must be patents, trade marks, designs, copyright and know-how. Of these, know-how is probably the least understood but the most ubiquitous.

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Lost soles Intellectual Property November 2012

In a world in which stilettos are among the most desirable possessions a modern woman can own, it is no wonder that the designer-shoe market has become increasingly competitive. In an effort to add a distinctive element to their products, designers are increasingly aware of the role of colour in distinguishing their goods. However, when it comes to enforcement of colour trade marks this can be a tricky business, as seen recently in the judgement of the United States Court of Appeals in Christian Louboutin S.A. v Yves Saint Laurent Am. Holding, Inc.

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Patents: a ticket to ride for South African technology companies Intellectual Property November 2012

As South African companies look to expand into international markets their use of patent and intellectual property systems becomes increasingly important. Early European shipping merchants were required to hold “letters patent" from their monarchs before they were allowed to develop new trade routes. In return for these letters patent the merchants sent royalties back to the monarch for the use of his name and authority. In modern times patents are granted for inventions, though they aren't as different as one might initially think from the original letters patent granted by monarchs for trade.

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Oh! Those wrinkles Intellectual Property November 2012

An organic chemist's view of the “lead compound" argument

In Helena Rubinstein SNC and L'Oréal SA v Allergan Inc., Case C‐100/11 P, a judgement of the Court of Justice of the European Union (CJEU), dated May 10 2012, Helena Rubinstein filed an application for BOTOLIST, and L'Oréal filed an application for BOTOCYL, and obtained registration. Both marks were filed in class 3, which includes cosmetics. Allergan launched expungement proceedings based on its BOTOX mark registered chiefly in class 5 in relation to, among others, pharmaceutical preparations for the treatment of wrinkles.

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Doomed without clear and compelling evidence Intellectual Property November 2012

Securing registration of a trade mark does not guarantee an endless monopoly in the mark. In terms of s27(1)(b) of the Trade Marks Act, a registered trade mark may be removed from the register on the ground of non-use if, up to the date three months before the date of the application for removal, a continuous period of five years or longer has elapsed from the date of registration, during which the trade mark was registered and there was no bona fide use of the mark.

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(Sic!!) Losing property rights through divisional applications Intellectual Property November 2012

When filing and prosecuting PCT national phase patent applications for foreign clients in South Africa, patent attorneys are often, at a later stage, instructed to file one or more so-called divisional applications in respect of part of the matter disclosed in the first-mentioned application (for example, in order to pursue claims of a different scope). This article aims to emphasise that, due to the unique nature of these applications, care should be taken when filing them in order to ensure they retain the same priority rights as the parent application.

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That word “filing” Company Law November 2012

On November 2 2011 the Companies and Intellectual Property Commission (CIPC) released 1 anon-binding opinion regarding the interpretation of s16(9) of the Companies Act ( 71 of 2008). In this opinion, the CIPC sets out the meaning of "filing" and extends the definition of the term from how it is currently defined in the Companies Act.

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A new direction Company Law November 2012

A recent case in which a business rescue application was dismissed has, despite the dismissal, thrown a different light on the approach of the courts to financially distressed companies.

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The corporate veil didn’t help Labour Law November 2012

The expression “piercing the corporate veil" was coined many years ago in the now defunct Industrial Court. A recent unreported judgement of the Labour Court has endorsed this approach, albeit using different terminology.

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Social media and strikes Labour Law November 2012

With the recent tragic events that unfolded at Marikana, we started wondering whether social media might influence strike action in the future. When conducting a search for “#Marikana" on Twitter, it came as no surprise that it was a trending topic and we have since come to the conclusion that social media platforms may well become effective tools for strikers.

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Strike action Labour Law November 2012

In South Africa Transport and Allied Workers Union (SATAWU) and Others v Moloto NO and Another CCT 128/11 [2012] ZACC 19, SATAWU sought leave to appeal against the judgement of the Supreme Court of Appeal in Equity Aviation Services (Pty) Ltd v South African Transport and Allied Workers Union 2012 (2) SA 177 (SCA), which construed the provisions of s64(1)(b) of the Act as obliging every employee who intends to embark on a strike to notify his or her employer of their intention personally or through a representative of the protected strike action.

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