The dissertation addresses the legal conflict which is related to the legitimacy of comparative advertising. The national legal system has the task to balance antagonistic interests of trademark proprietors, advertisers, consumers and the public at large. The thesis examines the South African, the European and the German legal system implemented a legal balance and presents consequences, commonalities and differences. After starting with an historical overview on comparative advertising in South Africa and the Advertising Standards Authorities' self-regulating system, the Common law of Unlawful Competition will be addressed with regard to its influences on comparative advertising. Further, the thesis deals with the South African Trade Mark Act and its interpretation of infringement in terms of comparative advertising. Also considering European jurisdiction will be considered. The European approach on trade marks and comparative advertising will be presented as it leads to the German approach on comparative advertising and served as inspiration for the South African Trade Marks Act. The manner of implementation of European Directives influencing comparative advertising in German national law will be examined. Hereby, the distinctive characteristics which are required for comparative advertising as well as the special statutory mentioned cases in which it is unlawful will be presented. The high level of legal differentiation shall be emphasized since this may lead to differences compared to the South African law. Finally, I will compare how South African law and German law approach the subject comparative advertising. Especially the influences of Common law and statutory law on unlawful competition will be compared and evaluated. It shall be presented which consequences can arise out of different systematic approaches in this field of law. Additionally, the differences in the legal approaches on trade mark infringement will be highlighted in respect of presenting whether they cause actual consequences for the final legal valuation of comparative advertising. Furthermore, the commonalities concerning the purpose of encouraging comparative advertising will be addressed.

Includes abstract. / Includes bibliographical references (leaves 310-370). / The patent system exists to encourage the development of new products from which society will benefit. The strength of protection awarded to patented products is a policy decision, allowing states to balance the monopoly rights of patent-owners against the inherent social costs of monopoly protection. The effective policy space within which states may establish domestic patent policy is increasingly circumscribed by international rules prescribing minimum protection levels regardless of local circumstances or consequences. In international negotiations, developing states have attempted to resist policy space curtailment using arguments that rely on foundational principles of the intellectual property system: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; its opponents counterargue that stronger patent protection achieves the same ends. This dissertation examines the resulting circular discussions at the 2001-2003 Doha negotiations and the WIPO Development Agenda talks since 2004. I argue that the impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Economists have been unable to resolve this tension by identifying optimal protection levels. Furthermore, intellectual property theory is unable to provide a bottom line at which the short-term social costs of patent monopolies must be deemed unacceptable, regardless of anticipated longerterm benefits. The developing states' negotiating stance will be strengthened if a bottom line can be identified. I argue that the International Covenant on Economic Social and Cultural Rights provides benchmarks to fulfil this function. ICESCR obligations are specific, objective, and measurable; they have international legitimacy; and they bind almost all states. I examine the Article 12 right to health to show that states violate the ICESCR if they ratify other treaties which reduce policy space and make it more difficult for states to adopt policies to meet their domestic or extraterritorial obligations. I also examine Article 15, concluding that it is insufficiently developed to offer firm guidelines. I use insights from international relations theory to examine the practical possibilities of adopting a human rights-based approach, and argue that the strategy will become progressively more effective as human rights norms are internalized through the negotiating process and by other means.

This thesis examines international approaches to musical work copyright infringement law for the purpose of establishing an approach that can be utilised effectively under the South African copyright infringement framework. In doing so, the importance of the various interactive elements of musical works is investigated as well as the modes of assessment in infringement scenarios. The findings are used to create a robust middle-ground approach to be adapted into the South African copyright infringement framework. Further considerations that impact infringement outcomes are addressed to the extent that they are contextually relevant. These include a discussion of research undertaken on the continent regarding the relationship between creators and the music-related copyright regime as well as the role that exceptions and limitations play in infringement outcomes.

Hyperlinks serve as essential tools to communicate and disseminate information on the World Wide Web. As one commentator stated: ‘without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it'.1 Unfortunately, hyperlinks may also be utilised to enable copyright infringement.2 Copyright protected works may be disseminated on the internet without the authorisation of the copyright owner using hyperlinks. Accordingly, effective legal rules are necessary to not only safeguards the rights of copyright owners but to also preserve the fluid communication and dissemination of information on the internet. The dissertation will have the aim of analysing the approaches taken by the European Union's (EU) courts and the Unites states of America's (US) courts in dealing with hyperlinking to copyright protected works. The terms necessary for the proper understanding of the dissertation will be first outlined. It will then be determined if the EU originally offered a satisfactory solution to the hyperlinking issue. Thereafter, it will be explored if the EU currently effectively addresses the legal treatment of hyperlinking under copyright law. The approach taken by the US will then be critically analysed. Moreover, the dissertation will also have the goal of recommending how these jurisdictions should refine their laws to tackle future hyperlinking cases in an effective manner. Finally, it will be proposed which approach SA should favor when dealing with hyperlinking to copyright protected works.

Indigenous knowledge is a broad term that is used to describe various knowledge systems that are intimately linked with traditional communities.1 It is communicated orally and stored in the memories of people belonging to traditional communities; it is also expressed through the art of traditional communities, their practices, community laws, cultural values, folklore, proverbs and activities. 2 The World Intellectual Property Organization (WIPO), defines ‘indigenous knowledge' as a living body of knowledge - know-how, skills and practices that are formed, sustained and passed on through generations of a traditional community, often forming part of its cultural or spiritual identity.3 There is no internationally accepted definition of indigenous knowledge as the protection of indigenous knowledge is a recent discourse amongst relevant global institutions and countries protecting intellectual property. The term ‘traditional knowledge' is sometimes used in place of ‘indigenous knowledge' and this may create confusion. Therefore, for the purposes of this dissertation, it must be noted that these terms are used interchangeably. Furthermore, it must be expressly established that indigenous knowledge is the property of indigenous communities. Indigenous communities, in their interaction with the environments in which they have resided, have developed a body of knowledge, skills and creative expressions over the centuries and this knowledge has formed an integral part of their cultural heritage.4 Such knowledge is now termed indigenous or traditional knowledge and as the true and original creators of such knowledge, indigenous communities are the rightful owners of it. Such ownership is recognized in Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples which states that indigenous peoples have the right to maintain, protect and develop their own cultural heritage, traditional knowledge, and cultural expressions. 5 All claims on the infringement of the ownership right on indigenous knowledge, which shall follow, are based on this recognition of ownership rights held by indigenous communities in their indigenous knowledge.

Includes bibliographical references / The aim of this thesis is to take a closer look at the interesting relationship between patent rights and competition law. The focus will be set on European and German law. The reason for it is that the European courts already started to deal with the relation between intellectual property and competition law decades ago and have assumed a leading role in handling the anticompetitive exercise of intellectual property rights. Apart of the European focus the legal situation in South Africa will be elicited as well and, as far as possible, analysed against the background of the European situation.

Includes bibliographical references. / Namibia is well known for its unique climate and ecological profile hence its biodiversity, which comprises wild and cultivated species and varieties. The country’s relative isolation has contributed to the maintenance of a unique genetic resource base. There are many naturally occurring plants and animals that have been used since time immemorial by local people as a source of food security, primary health and for their general livelihood, which could be exploited for commercial purposes. There is a growing international interest in bio trade with, and bio prospecting in, Namibia. This paper examines Traditional Knowledge (TK) and Intellectual Property Rights (IPR’s)6within the Namibian context. It further examines whether the protection under the current Namibian intellectual property (IP) framework sufficiently protects all types of indigenous TK against exploitation. The rationale for the examination stems from a draft policy on ‘Access to Genetic Resources and the Protection of Associated Traditional Knowledge’. There is little knowledge about the genetic resources that have left Namibia, those that are still here, and their biological and conservation status. The associated problems, concerns and threats underscore the need for policies and legislation to regulate access to genetic resources, to protect TK and practices, and to facilitate the equitable sharing of benefits from the use of genetic resources.

Includes bibliographical references. / This thesis considers the manner in which Nigerian intellectual property law regulates the digital environment. The main question it asks is whether existing intellectual property law adequately balances and protects the rights of rightholders and users in the digital environment.

The study recognises the significant biotechnical role of the pharmaceutical industry in developing and processing traditional medicine into safe and efficacious drugs and vaccines and how patent law assist this achieving this end. The study argues that patenting of traditional medicine inventions is possible without encroaching on the protection accorded to TK associated with GRs. It further argues that through the implementation of a disclosure requirement for all patent applications of inventions which are based on or derived from TK associated with GRs, misappropriation of TK and GRs can be prevented in Namibia. To this end, the study identifies key concepts and legal instruments both internationally and regionally i.e. the Convention on Biological Diversity, 1993, the TRIPS Agreement, 1994 and the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, 2010; which provides for TK, GRs and patent laws. The study further analysed how Namibia translated international obligations to its legal framework. A comparative analysis is produced between Namibia and South Africa to determine which system is most suitable for Namibia.

Given the importance of colour in the branding of goods and services to suggest and identify their source, under what conditions and circumstances may a single colour satisfy the legal requirements of being capable of distinguishing their goods and services from the goods and services of competitors? This dissertation interrogates and compares the position in various countries. The registrability of colours as trade marks has been tested in various jurisdictions over the years. However, the question remains, can a single colour serve and be registered as a trade mark and ultimately be used and enforced as a trade mark? / Mini Dissertation (LLM)--University of Pretoria, 2019. / Jurisprudence / LLM / Restricted