Spelling suggestions: "subject:"trademark law""
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The protection of trade marks vis-a-vis geographical indications on wines and spirits in South Africa with reference to the Liquor Products Act and the Trade Marks ActDe Wet, Johannes Wessels 06 1900 (has links)
Mercantile Law / LL. M. (Law)
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A paradigm shift of the trademark logo towards algorithmic justice: 邁向算法公義的商標圖案範式轉移 / 邁向算法公義的商標圖案範式轉移 / CUHK electronic theses & dissertations collection / paradigm shift of the trademark logo towards algorithmic justicd: Mai xiang suan fa gong yi de shang biao tu an fan shi zhuan yi / Mai xiang suan fa gong yi de shang biao tu an fan shi zhuan yiJanuary 2013 (has links)
Unauthorised use of the trademark logo on social media on a massive scale has led to frequent legal conflicts between trademark holders, social media providers and internet users and legal uncertainty. The thesis concludes that trademark infringement and dilution laws in the U.S. and EU are inadequate to solve this problem. The trademark logo on social media should be protected against unauthorised use, even though it is not used to sell the good or service the trademark indicates, but is used in a commercial environment. Two premises for any solution are that first the enforcement should be made automatic, since litigation on a case-by-case basis is not scalable, and second that the safe harbour provisions for online service providers, that aggravate the problem, should be substituted for strict liability. The trademark logo can be seen as the personification of the trademark holder, and one can argue that the stability of the trademark logo is not only in the interest of the trademark holder but also of society at large. One can argue that trademark dilution already provides a kind of moral right of integrity for the trademark logo. However, this right is limited to trademark logos that are considered famous or have a reputation, and, moreover, that are used in a commercial way. This thesis argues that also the trademark logo that did not reach the requested level of fame or reputation and is used in a non-commercial way should also be protected against unauthorised use on social media. Therefore the moral right of integrity is proposed for the trademark logo. Until the law will be amended to include a moral right of integrity for the trademark logo, this thesis suggests to implement proactive solutions in the walled gardens of social media as a testing ground for potential legislation. This automated solution is scalable, makes intellectual property protection and enforcement not only effective but also more calibratable to social policy goals and will inevitable lead to an algorithmic justice. / 社交媒體上大規模未經授權使用的商標標誌為商標持有人、社交媒體提供商和互聯網用戶之間帶來法律衝突,更帶來法律上的不確定性。本文提出的結論是美國與歐盟有關商標被侵犯和稀釋的法律並不足以解決這個問題。縱使在社交媒體上的商標標誌未被用作銷售貨品或服務,但由於是在商業環境使用,所以法律應該保障其免被未經授權使用。任何解決方法都必須基於兩個前設。首先由於按個別情況興訟的可行性低,所以執法應該自動化。其二網絡服務供應商所依賴的避風港條款只會使問題更加嚴重,因此應該採用嚴格法律責任。商標標誌可被視為商標持有人的縮影,而商標標誌的穩定性除了對商標持有人有利之外,可謂對廣大社會也有裨益。法律所保障商標免被稀釋本身可說是一種對商標標誌完整性的精神權利的認可。但現時只有被認為著名,有聲譽,以及作商業用途的商標標誌才享有此權利。本文強調一般未達到著名或有聲譽,以及未作商業用途的商標標誌在社交媒體上應該受到同等免被未經授權使用的保障。就此,本文提出商標標誌應享有完整性的精神權利。在修法保障商標標誌完整性的精神權利前,本文建議在社交媒體這個空間裡採納積極的措施,以測試未來法律條文的可行性。此自動化的方案有可擴展性,使保障和執行知識產權既有效率,又可對準社會政策的目標,更必然會帶來算法公義。 / Friedmann, Danny. / Thesis Ph.D. Chinese University of Hong Kong 2013. / Includes bibliographical references (leaves 354-380). / Abstracts also in Chinese. / Title from PDF title page (viewed on 05, October, 2016). / Friedmann, Danny. / Detailed summary in vernacular field only.
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The protection of trade marks vis-a-vis geographical indications on wines and spirits in South Africa with reference to the Liquor Products Act and the Trade Marks ActDe Wet, Johannes Wessels 06 1900 (has links)
Mercantile Law / LL. M. (Law)
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A comparative legal study of the dilution of registered trade marks in selected jurisdictions to further the development of the remedy in South African lawVan der Walt, Elizabeth Margaretha 12 1900 (has links)
Thesis (LLD)--University of Stellenbosch, 2005. / ENGLISH ABSTRACT: Trade marks are among the most valuable commodities of the modern business world.
Adequate protection for trade marks to prevent the misappropriation of their incredible
marketing power is therefore important.
The aim of this dissertation is to make recommendations regarding the further
development of existing South African law regarding the protection of registered trade
marks against dilution, particularly by the courts. Current statutory protection is
examined and compared with trade-mark law in the United States and the European
Union.
Although the concept of dilution originated in Germany, most of its development took
place in the United States, starting in 1927 with an article by Frank Schechter. Dilution
occurs when the awareness that a specific mark signifies a single product from a single
source changes to an unmistakable awareness that the same mark signifies various things
from various sources. The primary theories as to how dilution occurs are blurring and
tarnishment. Although the dilution concept is widely recognised, there is still a debate
amongst legal scholars on whether trade marks deserve protection against dilution.
The extent of protection that the law gives to trade marks largely depends on the socioeconomic
functions that a trade mark is perceived to fulfil. The original source or origin
function is protected by the traditional infringement provisions. The identification or
distinguishing function, quality function and advertising function subsequently gained
recognition. The advertising function is statutorily recognised in various jurisdictions,
which prevents trade-mark dilution.
Statutory recognition of dilution in the United States first occurred in State law from
1947 onwards. Protection is generally given to distinctive or strong trade marks where a
similar mark is used on dissimilar goods in the absence of confusion in such a way that
there is a likelihood that the reputation of the senior mark will be injured. The
parameters of the concept were developed and refined mainly through case law. Federal protection against dilution was only introduced in 1995. The new Act, although widely
welcomed, also brought some unpredictability and interpretation problems.
The first statutory dilution protection for trade marks in Europe is found in the Uniform
Benelux Trade Marks Act. In 1989 the European Union adopted the Trademark
Directive, with the aim of harmonising the legal protection afforded to trade marks. Its
"dilution" provisions were incorporated into the United Kingdom's Trade Marks Act of
1994. The sometimes conflicting interpretations of these provisions by the English courts
and the Court of Justice of the European Communities are discussed.
The South African Act shows a substantial degree of harmony with legislation in the
United Kingdom and other European countries. Aspects of the wording of the dilution
provisions are however open to interpretation by the courts. Until the end of 2003 there
was only one major trade-mark dilution case decided by a South African court, namely
SAR v Laugh It OjJPromotions, which is discussed in detail. The dissertation concludes with recommendations to aid South African courts in the
future interpretation and application of the dilution provisions. Amendments to the
legislation are also proposed to promote greater clarity. / AFRIKAANSE OPSOMMING: Handelsmerke is van die waardevolste kommoditeite van die moderne besigheidswêreld.
Voldoende beskerming om die uitbuiting van handelsmerke se ongelooflike
bemarkingskrag te verhoed, is daarom belangrik.
Die oogmerk van die proefskrif is om aanbevelings te maak vir die verdure ontwikkeling
van bestaande Suid-Afrikaanse reg oor die beskerming van geregistreerde handelsmerke
teen verwatering, veral deur die howe. Die bestaande statutêre beskerming word
ondersoek en vergelyk met die reg op handelsmerke in the Verenigde State en die
Europese Unie.
Alhoewel die verwateringskonsep sy oorsprong in Duitsland het, is die konsep
hoofsaaklik in die Verenigde State ontwikkel, beginnende in 1927 met 'n artikel deur
Frank Schechter. Verwatering vind plaas wanneer die bewustheid dat 'n spesifieke merk
'n enkele produk vanuit 'n enkele bron aandui verander na 'n onmiskenbare bewustheid
dat dieselfde merk verskillende dinge vanuit verskillende bronne aandui. Die primêre
verskyningsvorme van verwatering is vertroebeling en besoedeling. Alhoewel die
verwateringskonsep wye erkenning geniet, is daar steeds 'n debat onder regsgeleerdes oor
die verdienstelikheid van die beskerming teen verwatering.
Die mate van beskerming wat die reg aan handelsmerke verleen, hang grootliks af van
wat gesien word as die sosio-ekonomiese funksies van 'n handelsmerk. Die aanvanklike
oorsprongsfunksie word beskerm deur die tradisionele bepalings rakende inbreukmaking.
Die identifiserings- of onderskeidingsfunksie, die kwaliteitsfunksie en die reklamefunksie
het later erkenning gekry. Die reklamefunksie word in verskillende jursidiksies statutêr
erken, wat die verwatering van handelsmerke verhoed.
In die Verenigde State het die eerste statutêre erkenning vir verwatering sedert 1947 in
die wetgewing van State plaasgevind. Beskerming is normaalweg gegee aan sterk
handelsmerke of handelsmerke wat kan onderskei in gevalle waar 'n soortgelyke merk gebruik is op ongelyksoortige goedere in die afwesigheid van verwarring op so 'n wyse
dat die waarskynlikheid bestaan dat die reputasie van die senior merk aangetas kan word.
Die maatstawwe van die konsep is hoofsaaklik ontwikkel en verfyn in hofsake. Federale
beskerming teen verwatering is eers in 1995 ingestel. Alhoewel dié nuwe wetgewing
wyd verwelkom is, het dit ook onvoorspelbaarheid en interpretasieproblerne
voortgebring.
Die "Uniform Benelux Trade Marks Act" het die eerste statutêre beskerming teen die
verwatering van handelsmerke in Europa gebied. Die "Trademark Directive" is in 1989
deur die Europese Unie aanvaar met die doelom die wetlike beskerming van
handelsmerke the harmonieer. Die "verwaterings"bepalings is geïnkorporeer in die
Verenigde Koninkryk se "Trade Marks Act" van 1994. Soms botsende interpretasies
hiervan is deur die Engelse howe en die Geregshofvan die Europese Unie gegee.
Die Suid-Afrikaanse wetgewing toon 'n groot mate van ooreenstemming met wetgewing
in the Verenigde Koninkryk en ander Europese lande. Aspekte van die bewoording van
die verwateringsbepalings is oop vir interpretasie deur die howe. Tot en met die einde
van 2003 was daar slegs een belangrike saak oor handelsmerkverwatering wat deur 'n
Suid-Afrikaanse hof beslis is, naamlik SAB v Laugh It Off Promotions. Dit word in detail
bespreek. Aanbevelings om die Suid-Afrikaanse howe in die toekoms te help met die interpretasie
en aanwending van die verwateringsbepalings, word in die finale hoofstuk gemaak.
Veranderinge aan die wetgewing word ook voorgestel, om groter duidelikheid te bereik.
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An evaluation of the regulation and enforcement of trade mark and domain name rights in South AfricaMaunganidze, Tendai January 2007 (has links)
The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
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Trademark dilution: a comparative analysisKaseke, Elson 31 March 2006 (has links)
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.
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Trademark dilution: a comparative analysisKaseke, Elson 31 March 2006 (has links)
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.
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Exploring the legal implications of the Trips trademark rules on the consumers' right to health in AfricaKazoba, Grace Kamugisha January 2007 (has links)
This research explores the international and national (such as Kenya, South Africa, Uganda, Tanzania and the OAPI region) standards of trademark law as well as the international rules promoting free flow of goods and how these two legal systems safeguard the consumers’ right to health. Focuses on the following two specific aspects of trademark law: counterfeiting which includes infringement, and licensing of a trademark in relation to consumers’ protection. / Thesis (LLM (Human Rights and Democratisation in Africa))--University of Pretoria, 2007. / Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Dr Atangcho N Akonumbo Senior Lecturer, Catholic University Yaounde, Cameroon. / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM
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Statutory civil remedies in trade mark litigationKelbrick, R. (Roshana) 06 1900 (has links)
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)
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Statutory civil remedies in trade mark litigationKelbrick, R. (Roshana) 06 1900 (has links)
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)
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