November 2019

Editor’s note - November 2019 Editor's Note November 2019

21 and 18 are milestone birthdays for people. These numbers are also auspicious for Gleason Publication. As I write this note in October, GP turns 21 and, in this month 18 years ago, the first issue of without prejudice was published.

Pro Bono – does it still need to be regulated? SPOTLIGHT ON PRO BONO November 2019

When one thinks about pro bono in South Africa, a useful exercise is to look back over the past two decades and see what we, as legal practitioners, have achieved. In 2002, a national conference entitled "The Responsibility of Lawyers in South Africa to undertake Pro Bono Publico and Public Interest Work" was held in Johannesburg in recognition of the dire shortage of legal services for the poor.

Pro bono under the Legal Practice Act – one year on SPOTLIGHT ON PRO BONO November 2019

As a developing country in which severe inequality remains deeply entrenched, legal assistance by an appropriately qualified attorney or advocate remains beyond the financial reach of the majority of South Africans.

The death of the late Ahmed Timol SPOTLIGHT ON PRO BONO November 2019

On 20 June 2018, the Webber Wentzel Leadership Network hosted Imtiaz Cajee, nephew of Ahmed Timol and founder of the Ahmed Timol Family Trust.

The right to temporary residence visas and permanent residence permits SPOTLIGHT ON PRO BONO November 2019

Once considered a safe haven for asylum seekers, recent xenophobic attacks coupled with an inhumane bureaucracy has tainted South Africa's reputation as a custodian of basic human rights for people seeking asylum. Asylum seekers in South Africa are forced to wait many years before their applications are considered. The delay in processing an asylum application results in many asylum seekers being barred from obtaining permanent residence permits and temporary residence visas while they navigate the asylum process.

“Never Again” – the old South African flag case SPOTLIGHT ON PRO BONO November 2019

In Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others (EQ02/2018) [2019] ZAEQC 2; [2019] 4 All SA 237 (EqC); 2019 (10) BCLR 1245 (EqC) (21 August 2019), the dispute centred around the issue of whether displays of the old South African flag should be considered hate speech, or whether these displays should be permitted due to the right to freedom of expression, as envisaged in South Africa's Constitution.

Out with the old and in with the new . . . rules SPOTLIGHT ON PRO BONO November 2019

Access to information and just administrative action have a lot of things in common in South Africa, both are considered to be cornerstones of democracy; both are enshrined constitutional rights that require the Legislature to enact legislation that gives effect to them; both have had legislation passed, the Promotion of Access to Information Act (2 of 2000) (the PAIA) and the Promotion of Administrative Justice (3 of 2000) (the PAJA) respectively; both envisaged tailor- made rules that govern the procedure for applications to court being developed by the Rules Board and approved by the Minister by February 2009. These were developed in 2009 (the old rules) and now, some 10 years later in 2019, both have new rules, published by the Minister on 4 October and which become operative on 4 November.

INTRODUCTION - November 2019 INTELLECTUAL PROPERTY FEATURE November 2019

What do the words Intellectual Property conjure up? The answer will undoubtedly be somewhat different depending on where you sit.

PASSING OFF ON THE PAST INTELLECTUAL PROPERTY FEATURE November 2019

Over time and for purposes of developing strong brands, brand owners may elect to effect changes to the get-up of their products. But hypothetically, what would happen if another trader uses parts of its rival competitor's past get-up? Will our courts afford protection to such a plaintiff in these circumstances and if so, what will be the considerations?

“COME ON TWIST AND SHOUT NOW!” – A PERSPECTIVE ON COMPOSITE TRADE MARKS INTELLECTUAL PROPERTY FEATURE November 2019

A trade mark can consist of various elements, a single word - or more; a device, a colour, a combination of these. In general, one must take a mark as one finds it. However, a trade mark attorney charged with securing the registration of a mark, or the avoidance of an infringement action, might contemplate the addition of a house mark or another mark to a less distinctive mark. The question considered in this article is what the significance of the permutations can be.

USING THE ARB INSTEAD OF THE COURTS INTELLECTUAL PROPERTY FEATURE November 2019

I was recently privileged enough to be the guest speaker at the Anton Mostert Chair of Intellectual Property Public Lecture at the University of Stellenbosch. This article is a reworked extract of part of that address.

WEEDING OUT THE OLD INTELLECTUAL PROPERTY FEATURE November 2019

An influx in the sale of cannabis products in South Africa has caused much confusion among consumers. We have seen cannabis beverages, oils, soaps, creams and even foods infused with cannabidiol (CBD) oils. There have also been numerous exhibitions and festivals across the country demonstrating the health benefits of these goods.

NAOMI KLEIN’S NO LOGO REVISITED INTELLECTUAL PROPERTY FEATURE November 2019

It's been 20 years since Naomi Klein published No Logo, the best-selling potstirrer that said harsh things about brands. Companies using the hollowbrand model, selling brands (lifestyles and tribal identities) rather than goods. Brands shaping our lives. Brands more powerful than governments. So, what's changed? That's the subject of the article No Logo at 20: Have we lost the battle against the total branding of our lives? (Dan Hancox, Observer, 11 August 2019).

NEW DAWN FOR CREATIVES IN KENYA INTELLECTUAL PROPERTY FEATURE November 2019

On 18 September, the Kenyan Copyright (Amendment) Bill, 2019 was signed into law by President Uhuru Kenyatta (the new law). The Bill had undergone various reviews since 2016 when it was introduced to Parliament. The coming into effect of the new law marks a new day for copyright holders as it significantly amends the Copyright Act (12 of 2001) which has been the governing statute for protection of copyrights in Kenya.

DESIGN PROTECTION FOR SPARE PARTS IN SOUTH AFRICA AND THE UNITED STATES INTELLECTUAL PROPERTY FEATURE November 2019

In BMW v Grandmark International 2014 (1) SA 323 (SCA), the Supreme Court of Appeal found BMW's registered designs for vehicle spare parts to be invalid. The designs in question were for a bonnet, a grille, a headlight assembly and a front fender. The court held that the design of these parts did not qualify as aesthetic designs because consumers select them solely to perform the "function" of replacing the original with an exact match. According to the SCA, aesthetic designs must be "those that invite customer selection – and customer discrimination between articles – solely by their visual appeal". The court found the designs to be purely functional and, therefore, incapable of protection as aesthetic designs.