scholarly journals Discovering the Value of Liberty in Intellectual Property Adjudication: A Methodological Critique of the Reasoning in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ)

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Richard Shay ◽  
Ndivhuwo Ishmel Moleya
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Trade Mark ◽  
Constitutional Rights ◽  
Trade Mark Infringement ◽  
Correct Conclusion ◽  
General Obligation ◽  
The Common ◽  
Judicial Reasoning ◽  
The Republic

This article discusses the recent decision in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ), which concerned a claim of trade mark infringement in terms of sections 34(1)(a) and 34(1(c) of the Trade Marks Act 194 of 1993 and unlawful competition on a developed reading of the common law. This article argues that the court arrived at the correct conclusion by the incorrect means and failed to adequately construe the array of constitutional interests and considerations that pertained to the matter on the facts. Further, the lack of clarity on the appropriate constitutional port of entry for the judicial enquiry unnecessarily leaves future courts guessing regarding the correct methodology to employ in cases where intellectual property rights are asserted in opposition to constitutional rights and interests. It is argued that the transformative impetus of section 39(2) of the Constitution of the Republic of South Africa, 1996, as well as numerous substantive constitutional provisions are undermined when courts neglect to anchor judicial reasoning in the constitutional context and merely apply a constitutional veneer to whatever outcome has already been reached. Accordingly, we argue that courts are under a general obligation to root all adjudication in constitutional norms and method, which, we submit, secures a thicker concept of the value of liberty than has been produced in this decision.

scholarly journals Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Tina Kotzé ◽  
Zsa-Zsa Boggenpoel
Keyword(s):  
Common Law ◽  
Constitutional Rights ◽  
Narrow Sense ◽  
Underlying Principle ◽  
Living Together ◽  
The Common ◽  
Nuisance Law ◽  
The Republic ◽  
The Relationship

The Covid-19 pandemic, with its concomitant "stay at home" catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the Covid-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of "reasonableness" in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties. Whether the nuisance is objectively reasonable or goes beyond that which can be reasonably tolerable under the circumstances requires weighing up various factors dependant on the prevailing circumstances, rights, interests, values and obligations of the neighbours and the community. In the constitutional dispensation, based on the values of human dignity, equality, and freedom, this may inadvertently require courts to balance out and reconcile often opposing constitutional rights. To this end the underlying principle of nuisance law encapsulated in the phrases "give and take" and "live and let live" arguably already encapsulates the notion of balancing respective rights (constitutional or otherwise) and interests given the context of each case. However, courts do not always correctly apply the reasonableness test in a principled and coherent fashion, as illustrated in Ellaurie v Madrasah Taleemuddeen Islamic Institute 2021 2 SA 163 (KZD). This may lead to the conclusion that constitutional rights are ignored when the reasonableness test for nuisance law is applied. It is necessary to reconceptualise the reasonableness test in order to ensure that the common law is infused with constitutional values. There are numerous ways in which the ideals and values of the Constitution of the Republic of South Africa, 1996 (and even specific constitutional rights other than property rights) could be advanced if courts were more willing (not being held back by conservatism) and able (equipped with the necessary vocabulary) to apply the common law in line with the Constitution. It is pivotal that courts apply the reasonableness test correctly, considering all the relevant circumstances of the case, including the broader constitutional values and ideals such as ubuntu. It is arguable that if this were done, nuisance law would have a greater potential to incorporate a wider range of rights, interests and values so that the outcomes would be fairer and more equitable, which is, after all, the goal of the reasonableness standard in neighbour law.

28. Tortious protection of intellectual property rights

2019 ◽  
pp. 515-550
Author(s):  
Paul Torremans
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Common Law ◽  
Trade Mark ◽  
Trade Marks ◽  
Passing Off ◽  
Trade Mark Law ◽  
The Common ◽  
The Law

This chapter discusses the ways in which the common law, in the form of the law of tort, creates rights of action. It focuses on the torts of passing off and malicious falsehood, although attention is also paid to the ways in which defamation can assist. These rights are supplementary, and complementary, to the statutory formal rights. In particular, trade mark law and passing off closely overlap, although s. 2(2) of the Trade Marks Act 1994 preserves passing off as a separate cause of action.

scholarly journals Replaying the Past: Roles for Emotion in Judicial Invocations of Legislative History, and Precedent

2019 ◽  
Vol 9 (9(5)) ◽  
pp. 577-595
Author(s):  
Emily Kidd White
Keyword(s):  
Freedom Of Expression ◽  
Common Law ◽  
Legal Reasoning ◽  
Constitutional Rights ◽  
Freedom Of Association ◽  
Legislative History ◽  
The Past ◽  
The Common ◽  
Judicial Reasoning ◽  
Constitutional Right

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and rights abuses (however ill or well-defined), work to conjure up a set of service emotions (emotions which work to establish a particular frame of mind), which guide judicial applications of doctrine in cases concerning an alleged violation of a constitutional right. El razonamiento jurídico en la tradición de derecho consuetudinario exige que los jueces partan de conceptos y de ejemplos que se supone se hacen eco de un significado emocional concreto y que, en el razonamiento judicial, operan como si de hecho así fuera. La aplicación judicial de derechos constitucionales se interpreta generalmente por medio de referencias a delitos anteriores (a través de encuadres contextuales precedentes o bien a través de la historia legislativa), lo que, a su vez, invoca una serie de emociones que profundizan e intensifican la interpretación judicial de una garantía jurídica (libertad de asociación, libertad de expresión, igualdad, seguridad de la persona, etc.). Este artículo analiza la forma en que las invocaciones a la historia política o a abusos de derechos (por mal o bien definidos que estén) sirven para formar un conjunto de emociones de servicio (que sirven para establecer un estado de ánimo concreto), que guían la aplicación judicial de la doctrina en casos de presuntas violaciones de derechos constitucionales.

scholarly journals Replaying the Past: Roles for Emotion in Judicial Invocations of Legislative History, and Precedent

2019 ◽  
Vol 9 (9(5)) ◽  
pp. 577-595
Author(s):  
Emily Kidd White
Keyword(s):  
Freedom Of Expression ◽  
Common Law ◽  
Legal Reasoning ◽  
Constitutional Rights ◽  
Freedom Of Association ◽  
Legislative History ◽  
The Past ◽  
The Common ◽  
Judicial Reasoning ◽  
Constitutional Right

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and rights abuses (however ill or well-defined), work to conjure up a set of service emotions (emotions which work to establish a particular frame of mind), which guide judicial applications of doctrine in cases concerning an alleged violation of a constitutional right. El razonamiento jurídico en la tradición de derecho consuetudinario exige que los jueces partan de conceptos y de ejemplos que se supone se hacen eco de un significado emocional concreto y que, en el razonamiento judicial, operan como si de hecho así fuera. La aplicación judicial de derechos constitucionales se interpreta generalmente por medio de referencias a delitos anteriores (a través de encuadres contextuales precedentes o bien a través de la historia legislativa), lo que, a su vez, invoca una serie de emociones que profundizan e intensifican la interpretación judicial de una garantía jurídica (libertad de asociación, libertad de expresión, igualdad, seguridad de la persona, etc.). Este artículo analiza la forma en que las invocaciones a la historia política o a abusos de derechos (por mal o bien definidos que estén) sirven para formar un conjunto de emociones de servicio (que sirven para establecer un estado de ánimo concreto), que guían la aplicación judicial de la doctrina en casos de presuntas violaciones de derechos constitucionales.

The Trade Mark, Other Product Designations, and Goodwill

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Subject Matter ◽  
Common Law ◽  
Trade Mark ◽  
Geographical Indication ◽  
Passing Off ◽  
Rights Protection ◽  
Essential Properties ◽  
The Subject ◽  
The Common ◽  
The Relationship

This chapter considers the meaning of the terms that appropriately denote the subject matter protectable by registered trade mark and allied rights, including the common law action of passing off. Drawing on the earlier analyses of the objects protectable by patent and copyright, it defines the trade mark, designation of origin, and geographical indication in their current European and UK conception as hybrid inventions/works in the form of purpose-limited expressive objects. It also considers the relationship between the different requirements for trade mark and allied rights protection, and related principles of entitlement. In its conclusion, the legal understandings of trade mark and allied rights subject matter are presented as answers to the questions identified in Chapter 3 concerning the categories and essential properties of the subject matter in question, their method of individuation, and the relationship between and method of establishing their and their tokens’ existence.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

scholarly journals Kári á Rógvi, West-Nordic Constitutional Judicial Review: A Comparative Study of Scandinavian Judicial Review and Judicial Reasoning (Copenhagen: Djøf Publishing, 2013)

2015 ◽  
Vol 10 (1) ◽  
Author(s):  
Rachael L. Johnstone
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Faroe Islands ◽  
Legal Studies ◽  
Legal Literature ◽  
The Common ◽  
Judicial Reasoning ◽  
The University ◽  
Constitutional Judicial Review ◽  
Selection Of

West-Nordic Constitutional Judicial Review is based on Kári á Rógvi’s doctoral dissertation, defended in 2009 at the University of Iceland with the esteemed Eivind Smith and Guðmundur Alfreðsson as thesis opponents. It provides an excellent account of judicial review in the West-Nordic tradition (Norway, Denmark, Iceland, the Faroe Islands and Greenland) based on a selection of ‘leading cases, reminiscent of the common law approach to legal studies. As such, it is something of a novelty in the Nordic legal literature and a long overdue supplement to what Kári laments as the staid legal treatises that form the basis of Nordic legal educations (323-335).

Intellectual Property Law and Redressive Autonomy

2020 ◽  
pp. 161-186
Author(s):  
Shyamkrishna Balganesh
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Property Law ◽  
Private Law ◽  
Intellectual Property Law ◽  
Additional Layer ◽  
The Common ◽  
Strong Commitment

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes—known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

14. Defences to trade mark infringement

2019 ◽  
pp. 320-360
Author(s):  
Stavroula Karapapa ◽  
Luke McDonagh
Keyword(s):  
Intellectual Property ◽  
Trade Mark ◽  
European Economic Area ◽  
European Economic ◽  
Trade Mark Infringement ◽  
Economic Area ◽  
Parallel Importation ◽  
Own Name ◽  
Scope Of Protection

This chapter looks at the various defences against trade mark infringement and the way in which the courts have interpreted them. A defendant's principal argument will be to deny that there has been any infringing conduct, and/or that what has been done is not within the scope of protection given to the registered mark. There are, however, a number of statutory defences. These defences span from the use of one's own name to a framework outlining the conditions of comparative advertisement and the role of exhaustion of rights as a defence to an action for trade mark infringement, including the ways in which the intellectual property owner can object to the parallel importation of non-European Economic Area (EEA) goods.

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