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Patent and Trademark Litigation in South Africa

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SOUTH AFRICA Patent Litigation

Dr Hans H Hahn and Janusz F Luterek
(Published in Patent Litigation Jurisdictional Comparisons, European Lawyer REFERENCE series, Ed. Thierry Calame and Massimo Sterpi, 2006 )


What are the principal sources of law and regulation relating to patents and patent litigation?

The South African Patents Act of 1978 as amended from time to time (Patents Amendment Act 14 of 1979, Patents Amendment Act 67 of 1983, Patents Amendment Act 44 of 1986, Patents Amendment Act 76 of 1988, General Law Amendment Act 49 of 1996, Intellectual Property Laws Amendment Act 38 of 1997, and Patents Amendment Act 58 of 2002) and the patent regulations under such Act governs all matters relating to patent and patent litigation. Procedural matters in litigation not dealt with by the patent regulations are determined under the regulations of the High Court. The interpretation of the Patents Act follows common law principals of Roman Dutch law, going back to early Roman legal doctrines as applied by early Dutch authorities. South Africa has acceded to the following international treaties and conventions relating to patents: Paris Convention, PCT, TRIPS, WTO.

1.2 What is the order of priority of the relevant sources, i.e. which take precedence in the event of a conflict?

In the event of a conflict between national patent law and the Constitution of the Republic of South Africa, the Constitution prevails: 108 of 1996, as interpreted from time to time by the South African Constitutional Court. South African statutes take precedence over any conflicting provisions in international treaties or international law not expressly incorporated in South African statutes. However, South African courts are bound by past decisions of higher ranking South African courts.


2.1 In which courts are patents enforced? Are there specialised courts?

If not, what level of expertise can a patent holder expect from the courts? By statute the Registrar of Patents has some judicial powers, which in practice are mainly confined to administrative matters (including oppositions against administrative acts) and to tax costs awarded by the Commissioner of Patents. Decisions by the Registrar are subject to review by, or appeal to the Commissioner of Patents.

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1. Sources of Law 1.

1 What are the principal sources of law and regulation relating to trade marks and trademark litigation?

The principle sources of trade mark law are the Trade Marks Act of 1993 ("the Act") and the common law which is rooted in Roman Dutch Law. Other statues having a bearing on the operation of trade mark law include the Counterfeit Goods Act of 1997, the Merchandise Marks Act of 1941, the Intellectual Property Laws Amendment Act of 1997, the Competition Act of 1998 and the Constitution of the Republic of South Africa Act of 1996. South Africa was a signatory to GATT and became a member of the World Trade Organisation with effect from the 31st January 1995. Although the agreement on Trade Related Aspects of Intellectual Property Rights was ratified by Parlament in April 1995, unfortunately the Treaty has not yet been made part of South Africa's domestic law.

1.2 What is the order of priority of the relevant sources, i.e. which take precedence in the event of a conflict?

In general, the Constitution would take precedence over the Trade Marks Act and its related laws. In terms of case law, the Supreme Court of Appeal decisions will take precedence over High Court decisions which in time turn take precedence over the decision of the Registrar of Trade Marks.

2. Court and Administrative System

2.1 Can third parties oppose / request cancellation of a national or supranational (e.g. Benelux, Madrid Agreement and Protocol, Community Trademarks) trademark application / registration in your country? If so, on what grounds?Please briefly describe the opposition / cancellation procedure(s).

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