Offensive trademark registrations, blurred lines and legal limits
- Authors: Amram, Sivan
- Date: 2016
- Subjects: Trademarks - Law and legislation
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/86926 , uj:19545
- Description: Abstract: Trademarks serve as an indication of origin of goods or services and differentiate such goods or services from those of another party. A trademark can take many shapes and forms and in particular to this discussion, can also be offensive. Some countries have highly developed systems in place designed to determine whether such offensive marks may be registered and therefore protected under their relevant Acts. There are however, some countries which do not have such systems in place, or that such systems are not developed enough to allow for a proper evaluation of offensive trademarks before they can be registered. South Africa‟s landmark case Laugh it off Promotions CC v SAB International (Finance) BV t/a Sabmark International dealt with the question of offensive trademarks. It dealt with it in the context of dilution with two registered trademarks and developed the test accordingly. In the process, Laugh it Off indirectly applied this test not only to two registered trademarks but also to unregistered marks by applying section 16(1) of the Constitution (freedom of expression) broadly. This application is unsatisfactory as it results in indirectly undermining section 10(12) of the Trade Marks Act 194 of 1993 which grants power to the registrar to deny marks which are offensive or contra bonos mores from being registered. In addition there is no further guidance within our own law (case law or legislation) which can assist in determining the registrability of an offensive trademark. This study seeks to identify the factors and systems used in foreign jurisdictions in respect of offensive trademark registrations and whether such trademarks can be registered. It further seeks to outline the shortcomings of the South African system with regards to offensive trademark registrations. This study concludes with how such shortcomings may be supplemented by factors considered in foreign jurisdictions. , LL.M. (Commercial Law)
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- Authors: Amram, Sivan
- Date: 2016
- Subjects: Trademarks - Law and legislation
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/86926 , uj:19545
- Description: Abstract: Trademarks serve as an indication of origin of goods or services and differentiate such goods or services from those of another party. A trademark can take many shapes and forms and in particular to this discussion, can also be offensive. Some countries have highly developed systems in place designed to determine whether such offensive marks may be registered and therefore protected under their relevant Acts. There are however, some countries which do not have such systems in place, or that such systems are not developed enough to allow for a proper evaluation of offensive trademarks before they can be registered. South Africa‟s landmark case Laugh it off Promotions CC v SAB International (Finance) BV t/a Sabmark International dealt with the question of offensive trademarks. It dealt with it in the context of dilution with two registered trademarks and developed the test accordingly. In the process, Laugh it Off indirectly applied this test not only to two registered trademarks but also to unregistered marks by applying section 16(1) of the Constitution (freedom of expression) broadly. This application is unsatisfactory as it results in indirectly undermining section 10(12) of the Trade Marks Act 194 of 1993 which grants power to the registrar to deny marks which are offensive or contra bonos mores from being registered. In addition there is no further guidance within our own law (case law or legislation) which can assist in determining the registrability of an offensive trademark. This study seeks to identify the factors and systems used in foreign jurisdictions in respect of offensive trademark registrations and whether such trademarks can be registered. It further seeks to outline the shortcomings of the South African system with regards to offensive trademark registrations. This study concludes with how such shortcomings may be supplemented by factors considered in foreign jurisdictions. , LL.M. (Commercial Law)
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Aspects of the registration of software as patents
- Authors: Stockl, Daimon
- Date: 2014-02-18
- Subjects: Computer software - Patents , Patent laws and legislation
- Type: Thesis
- Identifier: uj:4152 , http://hdl.handle.net/10210/9499
- Description: LL. M. (Intellectual Property Law) , Throughout the history of mankind and the countless ages in which law has found a voice, there has existed a need to achieve and maintain a balance between conflicting interests. In this everchanging and dynamic society the need for a balance is paramount. Although it may seem that the various conflicting interests are predominately of a private nature, many of these conflicting interests have consequences that have a salient impact on social welfare. One such branch of the law in which conflicting interests between various interested parties surface is patent law, and the controversial issue of software programs. The current socio-economic environment has experienced exponential technological growth, with substantial advancements not only in the field of hardware but also in the field of software. However, this same rapid growth is not always true when it comes to the law which, in certain fields may be remarked to unfortunately be lagging behind in the degree of protection it affords. The consequences of this may be dire in the case of technological developments, for it is the protection afforded that is in part responsible for the advancements in technology. This once again draws into account the fine line in the balance of rights between various conflicting interests, namely the protection of an individual’s creativity versus that of social welfare. In certain cases, regardless of how innovative or unique certain discoveries or developments may be, if they are important to the social welfare, then an individual’s rights or need for protection must give way. Having said this, one needs to evaluate where software programs fall within this delicate balance of rights. The legal position with regard to software programs in South African intellectual property law is found within the legislation. Namely, the protection afforded to software programs in the Copyright Act,1 and the exclusion of protection in the Patents Act.2 In light of this, why software programs are expressly excluded from protection in the Patents Act will be analysed. It will also be determined if, and to what extent, the Patents Act can be said to afford protection to software
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- Authors: Stockl, Daimon
- Date: 2014-02-18
- Subjects: Computer software - Patents , Patent laws and legislation
- Type: Thesis
- Identifier: uj:4152 , http://hdl.handle.net/10210/9499
- Description: LL. M. (Intellectual Property Law) , Throughout the history of mankind and the countless ages in which law has found a voice, there has existed a need to achieve and maintain a balance between conflicting interests. In this everchanging and dynamic society the need for a balance is paramount. Although it may seem that the various conflicting interests are predominately of a private nature, many of these conflicting interests have consequences that have a salient impact on social welfare. One such branch of the law in which conflicting interests between various interested parties surface is patent law, and the controversial issue of software programs. The current socio-economic environment has experienced exponential technological growth, with substantial advancements not only in the field of hardware but also in the field of software. However, this same rapid growth is not always true when it comes to the law which, in certain fields may be remarked to unfortunately be lagging behind in the degree of protection it affords. The consequences of this may be dire in the case of technological developments, for it is the protection afforded that is in part responsible for the advancements in technology. This once again draws into account the fine line in the balance of rights between various conflicting interests, namely the protection of an individual’s creativity versus that of social welfare. In certain cases, regardless of how innovative or unique certain discoveries or developments may be, if they are important to the social welfare, then an individual’s rights or need for protection must give way. Having said this, one needs to evaluate where software programs fall within this delicate balance of rights. The legal position with regard to software programs in South African intellectual property law is found within the legislation. Namely, the protection afforded to software programs in the Copyright Act,1 and the exclusion of protection in the Patents Act.2 In light of this, why software programs are expressly excluded from protection in the Patents Act will be analysed. It will also be determined if, and to what extent, the Patents Act can be said to afford protection to software
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