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)
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:umkn-dsp01.int.unisa.ac.za:10500/17062 |
| Date | 06 1900 |
| Creators | Kelbrick, R. (Roshana) |
| Contributors | Visser, C. J., Rutherford, B. R. |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (xvi, 378 p.) |
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