Modern trade marks perform multiple functions taken up in a functional matrix. Amongst them the distinguishing function is invariable whilst the other functions are variable. A legal-historical and comparative investigation of the law of trade marks in the United Kingdom, the European Union, the U.S.A. and South Africa reveals that only certain trade mark functions have traditionally been afforded protection under law. This is mainly because of a historical resistance to accepting trade marks as property in the Anglo and American trade mark systems and the primacy of origin theory in the European Community trade mark system. The bedrock of South African trade mark law has been the trade mark law of the United Kingdom. The restrictions brought about by common law property theory have been carried over into the South African law of trade marks. The South African law of property is however derived from the civil law and not the common law. The historical break in continuity of the common law trade mark tradition as a consequence of the interposition of the European Union and the reception of EC trade mark law in the United Kingdom affords the opportunity for a theory of trade mark rights to be established in South Africa which is derived from concepts already present in South African law. The thesis proposes that the legal right to the trade mark in South African law is an independent subjective right of the kind proposed by Joubert. The legal object of this right is the trade mark. The entitlements of use of the holder of the right are the functions which the holder is entitled to have the trade mark perform. A range of values in which the property in a trade mark is to be found are associated with the functions. Unlawful impingement upon any function infringes the trade mark right. This theory provides the Trade Marks Act, 1993 with a needed theoretical base. / Mercantile Law / LL.D.

Modern trade marks perform multiple functions taken up in a functional matrix. Amongst them the distinguishing function is invariable whilst the other functions are variable. A legal-historical and comparative investigation of the law of trade marks in the United Kingdom, the European Union, the U.S.A. and South Africa reveals that only certain trade mark functions have traditionally been afforded protection under law. This is mainly because of a historical resistance to accepting trade marks as property in the Anglo and American trade mark systems and the primacy of origin theory in the European Community trade mark system. The bedrock of South African trade mark law has been the trade mark law of the United Kingdom. The restrictions brought about by common law property theory have been carried over into the South African law of trade marks. The South African law of property is however derived from the civil law and not the common law. The historical break in continuity of the common law trade mark tradition as a consequence of the interposition of the European Union and the reception of EC trade mark law in the United Kingdom affords the opportunity for a theory of trade mark rights to be established in South Africa which is derived from concepts already present in South African law. The thesis proposes that the legal right to the trade mark in South African law is an independent subjective right of the kind proposed by Joubert. The legal object of this right is the trade mark. The entitlements of use of the holder of the right are the functions which the holder is entitled to have the trade mark perform. A range of values in which the property in a trade mark is to be found are associated with the functions. Unlawful impingement upon any function infringes the trade mark right. This theory provides the Trade Marks Act, 1993 with a needed theoretical base. / Mercantile Law / LL.D.

Mercantile Law / LL. M. (Law)

Mercantile Law / LL. M. (Law)

Little attention is paid to the civil remedies available when infringement of a trade mark or the right to goodwill occurs. Yet, for the owners of ~uch rights, these remedies are of much greater importance than theoretical considerations regarding the nature of the rights or what constitutes their infringement. This thesis analyses the civil remedies for trade mark infringement granted by the South African Trade Marks Act 194 of 1993. In the South African context, any consideration of civil remedies is rendered problematic by the attempted graft of English remedies onto a legal system with a different common-law background. It is, therefore, essential first to trace the English origin and application of these remedies, and then to determine whether each remedy is acceptable in terms of the South African common law. This is necessary, as our courts have previously rejected or adapted English remedies which were unknown to our common law but which Parliament introduced in legislation. The remedies of interdict (or injunction) in final and interlocutory form, compensatory damages, reasonable royalties, and delivery up are analysed from a substantive law and a procedural perspective. The procedural innovation of an inquiry as to damages is also considered. In respect of each remedy, (1) the English roots and development of the remedy are traced; (2) differences of approach in two other Commonwealth jurisdictions, Australia and Canada, are highlighted; (3) the development of the South African equivalent is detailed; and (4) suggestions for the future implementation of the remedy in South Africa are made. In the penultimate chapter, our common law and legislation (including the Constitution of the Republic of South Africa 108 of 1996 ) are measured against the requirements of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). Recommendations for the effective utilization of each remedy in South Africa are then made. They include suggestions for legislative amendment in respect of delivery up and an inquiry as to damages, and the introduction of statutory damages as an further civil remedy. / Mercentile Law / LL. D. (Laws)

Little attention is paid to the civil remedies available when infringement of a trade mark or the right to goodwill occurs. Yet, for the owners of ~uch rights, these remedies are of much greater importance than theoretical considerations regarding the nature of the rights or what constitutes their infringement. This thesis analyses the civil remedies for trade mark infringement granted by the South African Trade Marks Act 194 of 1993. In the South African context, any consideration of civil remedies is rendered problematic by the attempted graft of English remedies onto a legal system with a different common-law background. It is, therefore, essential first to trace the English origin and application of these remedies, and then to determine whether each remedy is acceptable in terms of the South African common law. This is necessary, as our courts have previously rejected or adapted English remedies which were unknown to our common law but which Parliament introduced in legislation. The remedies of interdict (or injunction) in final and interlocutory form, compensatory damages, reasonable royalties, and delivery up are analysed from a substantive law and a procedural perspective. The procedural innovation of an inquiry as to damages is also considered. In respect of each remedy, (1) the English roots and development of the remedy are traced; (2) differences of approach in two other Commonwealth jurisdictions, Australia and Canada, are highlighted; (3) the development of the South African equivalent is detailed; and (4) suggestions for the future implementation of the remedy in South Africa are made. In the penultimate chapter, our common law and legislation (including the Constitution of the Republic of South Africa 108 of 1996 ) are measured against the requirements of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). Recommendations for the effective utilization of each remedy in South Africa are then made. They include suggestions for legislative amendment in respect of delivery up and an inquiry as to damages, and the introduction of statutory damages as an further civil remedy. / Mercentile Law / LL. D. (Laws)

The thesis investigates the concept of trademark dilution under international and regional trademark law, and under the laws of selected jurisdictions; namely, the United States of America, Germany, the United Kingdom and the Republic of South Africa. The investigation includes measures undertaken to prohibit the internet-based dilution of famous marks through the registration of confusingly similar domain names. It is noted that dilution is imprecisely formulated under international trademark treaty law. In fact, the term "dilution" does not appear in international trademark treaties. To fill the gap of international trademark treaties, various policy initiatives, or `soft law' have been developed, which to some extent clarify both the concept of dilution, the type of mark protected from dilution, and the scope of such protection. The problem is that the policy initiatives are non-binding on States, so that different States have adopted different common law and statutory approaches to the protection of marks against dilution. This is demonstrated, for example, by the fact that the European Union and its Member States provide protection from dilution to "marks with a reputation", while the United States of America provides such protection only to "famous" marks, and the Republic of South Africa protects "marks which are well-known in the Republic" from dilution. The thesis analyses the protection granted in these jurisdictions, to determine the similarities and differences of approach, and to make appropriate law reform proposals to achieve uniformity of protection. In the final analysis, it is concluded that the burden of enforcing dilution provisions rest on the judiciary. This being so, the judiciary is urged to engage in a balancing exercise in deciding dilution cases. The courts should recognize that dilution provisions are powerful tools at the disposal of owners of trademarks with advertising value. At the same time, the courts should be steadfast in ensuring that protection from dilution does not stultify freedom of trade, or create absolute monopolies or a form of copyright in a trademark. / Jurisprudence / LL.D.

The thesis investigates the concept of trademark dilution under international and regional trademark law, and under the laws of selected jurisdictions; namely, the United States of America, Germany, the United Kingdom and the Republic of South Africa. The investigation includes measures undertaken to prohibit the internet-based dilution of famous marks through the registration of confusingly similar domain names. It is noted that dilution is imprecisely formulated under international trademark treaty law. In fact, the term "dilution" does not appear in international trademark treaties. To fill the gap of international trademark treaties, various policy initiatives, or `soft law' have been developed, which to some extent clarify both the concept of dilution, the type of mark protected from dilution, and the scope of such protection. The problem is that the policy initiatives are non-binding on States, so that different States have adopted different common law and statutory approaches to the protection of marks against dilution. This is demonstrated, for example, by the fact that the European Union and its Member States provide protection from dilution to "marks with a reputation", while the United States of America provides such protection only to "famous" marks, and the Republic of South Africa protects "marks which are well-known in the Republic" from dilution. The thesis analyses the protection granted in these jurisdictions, to determine the similarities and differences of approach, and to make appropriate law reform proposals to achieve uniformity of protection. In the final analysis, it is concluded that the burden of enforcing dilution provisions rest on the judiciary. This being so, the judiciary is urged to engage in a balancing exercise in deciding dilution cases. The courts should recognize that dilution provisions are powerful tools at the disposal of owners of trademarks with advertising value. At the same time, the courts should be steadfast in ensuring that protection from dilution does not stultify freedom of trade, or create absolute monopolies or a form of copyright in a trademark. / Jurisprudence / LL.D.