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INPL7312 MO

Intelectual Property Law (Varsity College)

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Intellectual Property Law

INPL7322 / INPL7312
MODULE OUTLINE 2023
(First Edition: 2020)

This guide enjoys copyright under the Berne Convention. In terms of the Copyright Act, no 98 of
1978, no part of this manual may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording or by any other information storage
and retrieval system without permission in writing from the proprietor.

The Independent Institute of Education (Pty) Ltd is registered with the

Department of Higher Education and Training as a private higher education
institution under the Higher Education Act, 1997 (reg. no. 2007/HE07/002).
Company registration number: 1987/004754/07.

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Table of Contents
Introduction ........................................................................................................................................ 3
Using this Module Outline ................................................................................................................. 4
This Module on Learn......................................................................................................................... 5
Module Resources .............................................................................................................................. 6
Module Purpose ................................................................................................................................. 9
Module Outcomes .............................................................................................................................. 9
Module Pacer ................................................................................................................................... 13
Glossary of Key Terms for this Module ............................................................................................ 31

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Introduction
Welcome to Intellectual Property Law. This module will expose you to the various intellectual
property rights that ground South African Intellectual Property Law. This module presents the basic
concepts of intellectual property in relation to legislation that governs them as well as case law
that set outs the adjudication in our courts over disputes concerning these unique property rights
in practice. In examining relevant legislation and case law relating to Intellectual Property Law, you
will also learn about the significant impact that the Constitution of the Republic of South Africa,
1996, has had on South African Intellectual Property Law. You will also have the opportunity to
engage with different Foreign legal systems, as well as the impact of International Human Rights
Law, and how they are compared to South African Intellectual Property Law, so that you can also
get a global perspective on the uniqueness and diversity that characterises South African
Intellectual Property Law.

Throughout this module, you will learn about intellectual property rights, concepts, principles and
remedies that flow should there be an infringement of these rights. Studying these rights along
with the Constitution, legislation, case law, foreign law and international legal concepts is integral
as it will assist you in answering questions based on given scenarios when faced with them in
practice.

Please remember that to get the most out of this module, it is essential that you read all the
prescribed texts and prepare for your classes accordingly. When doing so, keep a pen or pencil
handy, and make notes, ask questions, and provide comments as you read so that you engage more
deeply with the content in this module. Also remember that you have access to a variety of helpful
resources and active learn questions on VC Learn, that will assist you in understanding the content
of this module better as you work through your prescribed material and prepare for assessments.
We hope you will enjoy this module and take the opportunity to use the knowledge gained in your
future legal career.

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Using this Module Outline

This module outline has been developed to support your learning. Please note that the content
of this module may be found in the prescribed material. You will not succeed in this module if
you focus on this document alone.

This document includes a basic outline of the content of your module and should be used to guide
your progress through the course of this module. In it, you will find a module pacer, which outlines
the suggested hours for each learning unit. Additionally, your pacer includes the objectives that
inform the cognitive levels that you will be expected to engage with specific content. Please use
these objectives to prepare for your assessments and ensure that you have mastered them
accordingly.

An assessment brief section, which outlines the kinds of formative (developmental) and summative
(final) assessments that you will need to complete for the module, is also included in this
document. Please consult with this section so that you are suitably prepared for your assessments.

Finally, this document also includes a short breakdown of each learning unit. These are likely to
include various activities and revision questions for each learning unit. Again, please use these to
guide your comprehension and mastery of the content of this module so that you can successfully
meet the outcomes and develop the skills related to this module.

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This Module on Learn

Learn is an online space, designed to support and maximise your learning in an active manner. Its
main purpose is to guide and pace you through the module. In addition to the information provided
in this document, you will find some of the following when you access Learn:

• A list of prescribed material (in guide);

• A variety of additional online resources (articles, videos, audio, interactive graphics, etc.) in
each learning unit that will further help to explain theoretical concepts;
• Critical questions/activities to guide you through the module’s objectives;
• Collaborative and individual activities with time-on-task estimates to assist you in managing
your time around these;
• Revision questions, or references to revision questions, after each learning unit.

Kindly note:

• Unless you are completing this as a distance module, Learn does not replace your con-
tact time with your lecturers and/or tutors.
• INPL7312 and INPL7322 are Learn modules, and as such, you are required to engage
extensively with the content on the Learn platform. Effective use of this tool will pro-
vide you with opportunities to discuss, debate, and consolidate your understanding of
the content presented in this module.
• You are expected to work through the learning units on Learn in your own time – es-
pecially before class. Any contact sessions will therefore be used to raise and address
any questions or interesting points with your lecturer, and not to cover every aspect
of this module.
• Your lecturer will communicate submission dates for specific activities in class and/or
on Learn.

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Module Resources
Prescribed Prescribed Textbook:
Material (PM) Dean, O. and Dyer, A. Dean & Dyer: Introduction to Intellectual Property
for this Module Law (2014) 1st ed Oxford University Press: Cape Town
ISBN: 9780199045792

Legislation (with relevant sections indicated in relevant learning units

below)

• The Constitution of the Republic of South Africa, 1996

• Intellectual Property Laws Amendment Act 28 of 2013
• The Copyright Act 98 of 1978
• The Counterfeit Goods Act 37 of 1997
• The Trade Marks Act 194 of 1993
• The Merchandise Marks Act 17 of 1941
• The Patents Act 57 of 1978
• The Designs Act 195 of 1993

Bills
• The Copyright Amendment Bill
[https://www.parliament.gov.za/storage/app/media/uploaded-
files/Copyright%20Amendment%20Bill%20Draft.pdf] [Accessed on
16 March 2023].

Journal articles
• Holland, J. Copyright Law and Freedom of Expression in South Africa
2017 8:2 Nnamdi Azikiwe University Journal of International Law and
Jurisprudence 1.

• Van der Walt AJ and Shay RM Constitutional analysis of Intellectual

Property 2014 17:1 PER/PELJ 51.

• Pistorius, T. Trade-mark tarnishment: Should we “Laugh it off” all the

way to “Telkomsucks” and “Hellcom”? 2004 SA Merc LJ 727.
• M du Bois Intellectual Property as a constitutional property right: the
South African approach 2012 24 SA Merc LJ 174 – 190 (see pages
178 – 185).

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Case Law
• Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A)
• Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A)
• King v South African Weather Service 2009 (3) SA 13 (SCA)
• Galago Publishers (Pty) Ltd and Another v Erasmus 1989 (1) SA 276
(A)
• Jacana Education (Pty) Ltd v Frandsen Publishers (Pty) Ltd 1998 (2) SA
965 (SCA)
• Fax Directories (Pty) Ltd v SA Fax Listings 1990 (2) SA 164 (D)
• Bosal Afrika (Pty) Ltd v Grapnel (Pty) Ltd and Another 1985 (4) SA 882
(C)
• Frank & Hirsch (Pty) Ltd v A Roopanand Brothers (Pty) Ltd 1993 (4) SA
279 (A)
• Beecham Group plc and Others v Triomed (Pty) Ltd 2003 (3) SA 639
(SCA)
• Verimark (Pty) Ltd v BMW AG 2007 (6) SA 263 (SCA)
• adidas AG and Another v Pepkor Retail Ltd (187/12) [2013] ZASCA 3
• Société des Produits Nestlé SA v International Foodstuffs Co 2013
JDR 2699 (GNP)
• Laugh It Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International 2006 (1) SA 144 (CC).
• McDonalds Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd
and Another 1997 (1) SA 1 (A)
• Atlas Organic Fertilizers (Pty) Ltd and Others v Pikkewyn Ghwano (Pty)
Ltd and Others 1981 (2) SA 173 (T)
• Payen Components SA Ltd v Bovic Gaskets CC and Others 1995 (4) SA
441 (A) 29.
• Gentiruco A.G. v Firestone South Africa (Pty) Ltd 1972 (1) SA 589 (A)
• Ensign-Bickford (South Africa) (Pty) Ltd and Others v AECI Explosives
& Chemicals Ltd 1998 BIP 271 (SCA)
• University of Pretoria v Registrar of Patents 2011 BIP 41 (CP)
• Buzbee (Pty) Ltd v Registrar of Patents 2010 BIP 42 (CP)
• Clipsal Australia Pty Ltd v Trust Electrical Wholesalers [2007] SCA 24
[RSA]
• Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa 1996

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1996 (4) SA 744 (CC) para 75.

• First National Bank of SA Ltd t/a Wesbank v Commissioner, South
African Revenue Service; First National Bank of SA Ltd t/a Wesbank v
Minister of Finance 2002 (4) SA 768 (CC)
Recommended Web resources:
Readings,
Digital, and Web • The Companies and Intellectual Property Commission (CIPC) –
Resources https://www.cipc.co.za
• The Dramatic, Artistic and Literary Rights Organisation (DALRO) -
http://dalro.co.za/index.php [Accessed 09 March 2023].
• World Intellectual Property Organisation (WIPO) –
https://www.wipo.int/portal/en/index.html [Accessed 09 March
2023].
• Trade – related aspects of Intellectual Property Rights (The so-called
“TRIPS” Agreement)
https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm
[Accessed 09 March 2023].
• The Competition Commission: South Africa
http://www.compcom.co.za/ [Accessed 09 March 2023].

Please note that a number of additional resources and links to resources

may be provided throughout this module.
You are encouraged to engage with these as they will assist you in
mastering the various objectives of this module. They may also be useful
resources for completing any assignments. You will not, however, be
assessed under examination conditions on any additional or recommended
reading material.

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Module Purpose
The purpose of this module is to provide students with sufficient knowledge of intellectual
property law so that they are able to respond to and resolve basic matters relating to
intellectual property.
Module Outcomes
MO01 Provide an overview of the development of intellectual property law.
MO02 Differentiate between the various types of intellectual property rights.
Advise on remedies available when an intellectual property holder’s intellectual
MO03
property has been infringed.
MO04 Analyse the various sources of law which regulate intellectual property law.
Apply this detailed knowledge to (together with an ability to) apply the various
MO05
sources of intellectual property law to a scenario-based question.

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Assessments
Integrated Curriculum Engagement (ICE)
Minimum number of ICE activities to complete 4
Weighting towards the final module mark 10%

Formatives Take-Home Test Assignment

Weighting 30% 25%
Duration 1 hour Approximately 10 hours
Write/Submit after LU 1 LU 5
Learning Units covered LU 1 LUs 2,3,4 and 5
Resources required NA Additional research required

Summative Take-Home Examination

Weighting 35%
Duration 2 hours
Total marks 120
Open/Closed book Open book
Resources required None
Learning Units covered All

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Assessment Preparation Guidelines
Format of the Assessment
Take-Home Test
The take-home test for this
module will assess your
understanding of Learning
Unit 1 of this module. It will
include a series of short and
long questions, as well as
application-type questions.
You will be expected to
apply, as well as recall
information as per your
objectives for these learning
unit.
Assignment
The assignment will assess
your ability to integrate and
apply the content in
Learning Units 2,3,4 and 5
of this module, with
reference to short, long and
application-type questions
that may require additional
research.
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Preparation Hints
• Ensure that you work through all the relevant activities,
exercises and revision questions in your prescribed
material.
• Brainstorm possible questions based on the learning
outcomes and objectives provided, then complete these
as practice-tests.
• Engage with your lecturer in classes concerning any
questions or queries you may have regarding the module
content.
• During both your preparation for the test and during the
test itself, pay attention to the instruction words (like list,
apply, describe etc.) and to the mark allocations of each
question to ensure that you are able to provide the
correct depth and detail in your answers.
• Make sure that you have mastered the objectives in
Learning Unit 1.
• Ensure that you work through all the relevant activities,
exercises and revision questions in your prescribed
material.
• Brainstorm possible questions based on the learning
outcomes and objectives provided, then complete these
as practice-tests.
• Engage with your lecturer in classes concerning any
questions or queries you may have regarding the module
content.
• Make sure that you have mastered the objectives in
Learning Units 2,3,4 and 5.
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Take-Home Examination
The examination will assess •
all learning units in this
module, and will include
both theory and application-
type questions.
You will be expected to
respond to short and long
theory-based questions, as
well as application-type
questions with given
scenarios.
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Consult your past examination papers for this module,
which will be made available prior to your examination.
Make sure that you practice answering the sample
questions in the past papers so that you become familiar
with the kinds of questions likely to appear in the
examination itself.
• Ensure that you work through all the activities, exercises
and revision questions in your textbooks. You must have
completed the readings of your prescribed material to
ensure that you have prepared adequately for your
examination for this module.
• Engage with your lecturer in classes concerning any
questions or queries you may have regarding the module
content.
• Pay close attention to the instruction words (like list,
apply, describe, analyse etc.) and to the mark allocations
of each question to ensure that you provide the correct
depth and detail in your answers.
• Make sure that you are comfortable in responding to all
the objectives for all learning units.
• Brainstorm possible questions based on the learning
outcomes and objectives provided.
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Module Pacer
Code Programme Contact Sessions Credits
INPL7312 LAW3 36 12
INPL7322 BLW3 36 15
Learning Unit 1 Copyright

Overview:

Just as the law regulates and protects ownership of personal property and real estate, so too
does it regulate and protect the exclusive control of intangible assets, such as intellectual
property. The term “intellectual property” is used to describe a variety of different products that
originate from human intellect, and which are protected by various rights, including copyright.
Copyright specifically regulates the legal rights to control the production and commercial use of
certain creative works such as works of art, written books, photographs and films, among other
types of media, for a limited amount of time.

The reason behind copyright is to provide owners of original material with the exclusive rights
to use and profit from such material for a given amount of time. This can arguably provide more
motivation for people to innovate and create when they can do so with the assurance that their
rights are protected.

In this learning unit, we will look at the concept of copyright and protectable works, the
legislative framework regulating copyright protection, ownership of copyright, assignment and
licences related to copyright, the law as it pertains to the infringement of copyright and the
impact of the Constitution, 1996 on the law of copyright.

Please work through Themes 1,2,3,and 4, together with the relevant sections of your prescribed
source/s. To ensure that you are working towards mastering the objectives for this learning unit,
please also ensure that you complete all activities on Learn.

The challenge you may experience in this learning unit relates to the concept of what constitutes
a ‘work’ with reference to Copyright, so ensure that you are familiar with the various concepts
and terminology as set out in the chapter and the way that these are used in this module by
referring to the definitions in para 1.2 Chapter 1 for this unit.

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Learning Unit 1: Theme Breakdown

Sessions: Theme 1: Copyright and “works” Prescribed Material (PM)
1- 5
Related LO1: Explain “copyright” as a concept. PM: Chapter 1
Outcomes: LO2: Discuss the classes of “works” that can
MO01 be subject to copyright, with reference Waylite Diary CC v First
MO02 to: National Bank Ltd 1995 (1) SA
MO03 • What each class refers to; 645 (A)
MO04 • The importance of classification;
MO05 • Duration and effect. Klep Valves (Pty) Ltd v
LO3: Discuss the requirements for the Saunders Valve Co Ltd 1987
subsistence of a copyright in a work. (2) SA 1 (A)
LO4: Analyse The Copyright Act 98 of 1978
and the regulations under the Act. Copyright Act 98 of 1978
LO5: Discuss the Intellectual Property Laws
Amendment Act 28 of 2013. Intellectual Property Laws
LO6: Discuss the purpose and impact of the Amendment Act 28 of 2013
proposed Copyright Amendment Bill on
copyright. Copyright Amendment Bill
LO7: Examine the international arrangements, [https://www.parliament.gov.
in particular, the principle in za/storage/app/media/upload
International Law of “national ed-
treatment”. files/Copyright%20Amendme
nt%20Bill%20Draft.pdf]
[Accessed 28 May 2023].
Theme 2: Ownership and the transmission
of copyright
LO8: Discuss the general rule pertaining to PM: Chapter 1
ownership of copyright.
LO9: Identify exceptions to the rule. King v South African Weather
LO10: Outline the formalities for the valid Service 2009 (3) SA 13 (SCA)
assignment of copyright. Galago Publishers (Pty) Ltd
LO11: Compare the various licences relating to and Another v Erasmus 1989
copyright. (1) SA 276 (A)

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Theme 3: Infringement of copyright
LO12: Differentiate between direct and
indirect Infringement.
LO13: Compare copyright infringement to
plagiarism.
LO14: Discuss criminal infringement of
copyright.
LO15: Apply the defences to copyright
infringement to a given scenario.
LO16: Apply the remedies available to a
plaintiff concerning copyright
infringement to a given scenario.
Theme 4: The impact of the Constitution,
1996, on copyright.
LO17: Discuss the impact of the
Constitution, 1996, on copyright
with specific reference to:
• The Right to Freedom of
Expression in s 16 of the Bill of
Rights.
• The Right to Property in terms
of s 25 of the Bill of the Rights.
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PM: Chapter 1
Pistorius, T. Trade-mark
tarnishment: Should we “Laugh
it off” all the way to
“Telkomsucks” and “Hellcom”?
2004 SA Merc LJ 727.
Jacana Education (Pty) Ltd v
Frandsen Publishers (Pty) Ltd
1998 (2) SA 965 (SCA)
Galago Publishers (Pty) Ltd and
Another v Erasmus 1989 (1) SA
276 (A)
Fax Directories (Pty) Ltd v SA
Fax Listings CC 1990 (2) SA 164
(D)
Bosal Afrika (Pty) Ltd v Grapnel
(Pty) Ltd and Another 1985 (4)
SA 882 (C)
Frank & Hirsch (Pty) Ltd v A
Roopanand Brothers (Pty) Ltd
1993 (4) SA 279 (A)
Holland, J. Copyright Law and
Freedom of Expression in South
Africa 2017 8:2 Nnamdi
Azikiwe University Journal of
International Law and
Jurisprudence 1.
Van der Walt AJ and Shay RM
Constitutional analysis of
Intellectual Property (2014)
17:1 PER/PELJ 51.
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Learning Unit 2 Trademarks

Overview:

A trademark is a form of intellectual property. To put it simply, a trademark refers to a character

or symbol that is used by producers or suppliers in connection with their goods or services.
The purpose of these trademarks is to create a connection in the minds of the public, between
the goods or services, and the relevant producers or suppliers. As such, whenever a member
of the public sees such a trademark on a product, for example, they should associate that
product with the producer responsible for it.

Trademarks may therefore consist of a brand name, such as a word or combination of words
(e.g., Burger King), a slogan which is a short phrase or a sentence, (e.g., Just Do It) or a logo
which is a distinctive picture or symbol (e.g., the Apple on Apple Inc. products).

In this learning unit, we will look at the nature and essence of trademarks; the law as it relates
to the registration of trademarks and associated formalities; assignment, transmission and
licences related to trademarks; the law as it pertains to the infringement of trademarks; the
concept of “passing off”; and the impact of the Constitution of the Republic of South Africa,
1996 on trade marks.

Please work through Themes 1,2,3 and 4, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please also ensure that you complete all activities on Learn.

The challenge you may experience in this learning unit relates to the concept of what
constitutes a “mark” and “passing off” so ensure that you are familiar with the various
terminology as set out in the chapter and the way that these are used in this module. Also pay
careful attention to infringement and the remedies available.

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Learning Unit 2: Theme Breakdown

Sessions: Theme 1: Nature and Essence of a Trade Prescribed Material (PM)
6 – 10 Mark
Related LO1: Discuss the concept of a trademark PM1: Chapter 2
Outcomes: with reference to the following:
MO01 • The use and value of registered Intellectual Property Laws
MO02 trademarks in modern society. Amendment Act 28 of 2013
MO03 • The classification of goods and
MO04 services.
MO05 • The nature and essence of a
trademark.
Theme 2: Registration and transferability
of trademarks
LO2: Analyse the Registration Procedure PM1 : Chapter 2
for a trademark with reference to ss
9 and 10 in the Trademarks Act 194 Sections 9, 10, 23 and 25 of
of 1993. the Trademarks Act 194 of
LO3: Discuss how trademarks can be: 1993.
• Amended;
• Renewed; Beecham Group plc v
• Opposed; Triomed (Pty) Ltd 2003 (3) SA
• Rectified; 639 (SCA)
• Used in the context of “honest
concurrent use”.
LO4: Apply the principles governing the
disqualification of trademarks to a
given scenario.
LO5: Differentiate between assignment
and transmission in relation to
trademarks.
LO6: Discuss how licensing in respect of
trademarks takes place.

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Theme 3: Infringement of trademarks and
“passing off”
LO7: Analyse the grounds of
infringement in relation to
trademarks.
LO8: Discuss the defences to trademark
infringement.
LO9: Analyse the elements that need to
be proved for “passing off” relating
to trademarks.
LO10: Apply the available defences and
remedies concerning “passing off”
to a given scenario.
Theme 4: Trademarks and the Constitution,
1996.
LO11: Discuss the impact of the
Constitution, 1996, on trademarks. Constitutional analysis of
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PM: Chapter 2
Pistorius, T. Trade-mark
tarnishment: Should we “Laugh
it off” all the way to
“Telkomsucks” and “Hellcom”?
2004 SA Merc LJ 727.
Verimark (Pty) Ltd v BMW AG
2007 (6) SA 263 (SCA)
adidas AG and Another v Pepkor
Retail Ltd (187 / 12) [2013]
ZASCA 3
Société des Produits Nestlé SA v
International Foodstuffs Co
2013 JDR 2699 (GNP)
Laugh It Off Promotions CC v
South African Breweries
International (Finance) BV t/a
Sabmark International 2006 (1)
SA 144 (CC)
McDonalds Corporation v
Joburgers Drive-Inn Restaurant
(Pty) Ltd and Another 1997 (1)
SA 1 (A)
Van der Walt AJ and Shay RM
Intellectual Property 2014 17:1
PER/PELJ 51.
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Learning Unit 3 Unlawful Competition

Overview:

Unlawful competition, or unfair competition, entails the rules, primarily of a common law
origin, that regulate the competitive process between traders.

Generally, every person can freely carry on his or her trade or business in competition with his
or her rivals. However, there are rules which seek to ensure that competition in business
remains within fair bounds and that no trader benefits at the expense of his or her rivals though
the use of improper business methods. Unlawful competition occurs when a trader commits a
wrongful (unlawful) act which causes damage to a competitor by interfering with such
competitor’s right to attract custom or to conduct business.

In this learning unit, we will look at the law as it pertains to unlawful competition, including the
development of unlawful competition and related concepts; types of unlawful competition and
defences against unlawful competition.

Please work through Theme 1, together with the relevant sections of your prescribed source/s.
To ensure that you are working towards mastering the objectives for this learning unit, please
also ensure that you complete all activities on Learn.

The challenge you may experience in this learning unit relates to the concept of “unlawful
competition” so ensure that you are familiar with the various terminology as set out in the
chapter and the way that such terminology is used in this module. Also take note of the
remedies available in relation to unlawful competition.

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Learning Unit 3: Theme Breakdown

Sessions: Theme 1: Unlawful competition in the Prescribed Material (PM)
11 – 14 South African context
Related LO1: Discuss what is meant by unlawful PM: Chapter 3
Outcomes: competition.
MO01 LO2: Analyse the general requirements of Atlas Organic Fertlizers (Pty)
MO03 the Aquilian Action in relation to Ltd and Others v Pikkewyn
MO04 unlawful competition. Ghwano (Pty) Ltd and Others
MO05 LO3: Explain the following concepts in 1981 (2) SA 173 (T)
relation to unlawful competition:
• The right to attract custom. S 33 of the Trademarks Act
• The competition principle. 194 of 1993
LO4: Analyse the various types of Payen Components SA Ltd v
unlawful competition with reference Bovic Gaskets CC and Others
to: 1995 (4) SA 441 (A)
• Common law grounds.
• Statutory prohibitions.
LO5: Apply the defences and remedies in
respect of unlawful competition to a
given scenario.
LO6: Discuss the relationship between
unlawful competition, the Trade
Marks Act 194 of 1993 and other
Intellectual Property (IP) statutes.

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Learning Unit 4 Counterfeit Goods

Overview:

Counterfeit goods are goods that fraudulently imitate and use another’s brand name to lead
consumers into believing that they are buying the genuine product. The Counterfeits Goods
Act 37 of 1997 was specifically introduced to prohibit the trade in counterfeit goods in South
Africa, and to protect the owners of trademarks, copyright works and certain other marks
against the unlawful misuse of their intellectual property rights.

In this learning unit, we will look at the regulation of counterfeit goods in South Africa, including
the introduction of the Counterfeit Goods Act 37 of 1997, and search and seizure operations in
relation to counterfeit goods.

Please work through Theme 1, together with the relevant sections of your prescribed source/s.
To ensure that you are working towards mastering the objectives for this learning unit, please
also ensure that you complete all activities on Learn.

The challenge you may experience in this learning unit relates to the concept of “counterfeit
goods” so ensure that you are familiar with the various terminology as set out in the chapter
and the way that these are used in this module. Take careful note of how these items are
regulated as well as the penalties attached to the offence.

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Learning Unit 4: Theme Breakdown

Sessions: Theme 1: The regulation of counterfeit Prescribed Material (PM)
15 – 17 goods in terms of the
Counterfeit Goods Act 37 of
1997
Related LO1: Discuss “counterfeit goods” as PM: Chapter 4
Outcomes: defined in terms of the Counterfeit
MO01 Goods Act 37 of 1997. S 15 of the Merchandise
MO02 LO2: Explain the offence of dealing in Marks Act 17 of 1941
MO03 counterfeit goods.
MO05 LO3: Analyse the procedures that are Counterfeit Goods Act 37 of
used to seize and dispose of 1997
counterfeit good.
LO4: Discuss the procedures applicable to
post seizure of counterfeit goods.
LO5: Apply the principles, concepts and
procedures concerning counterfeit
goods to a given scenario.

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Learning Unit 5 Patents

Overview:

A “patent” is an intellectual property right which provides the owner with a statutory
monopoly right to protect their invention. A patent owner receives the exclusive right to
prevent or stop others from commercially exploiting the patented invention for a fixed period
of time. In exchange, however, a patent owner is required to fully disclose their invention,
thereby enabling others to exploit the invention once the patent term has come to an end.

Over the years, there have been countless examples of exciting inventions in terms of which
patent rights have been granted. You need not look further than the incandescent light bulb,
the electronic mouse that controls your desktop computer or the clickable mechanism found
in certain pens.

In this learning unit, we will look at patents as a concept and applicable law; the requirements
and procedure for obtaining a patent; the revocation of a patent; and the law as it pertains to
the infringement of patents.

Please work through Themes 1,2,3 and 4, and, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please also ensure that you complete all activities on Learn.

The challenge you may experience in this learning unit relates to understanding the territorial
nature of the right related to patents as well as the legislative framework governing patents
and requirements and procedure for obtaining a patent. Please note what constitutes
infringement and pay attention to the defences and remedies available in relation to patents.

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Learning Unit 5: Theme breakdown

Sessions: Theme 1: Patents as a concept and Prescribed Material (PM)
18 – 23 applicable law
Related LO1: Discuss the concept of a Patent with PM: Chapter 5
Outcomes: reference to:
MO01 • The nature of the right.
MO02 • The legislative framework and
MO03 international arrangements.
MO04
MO05

Theme 2: Requirements and procedure for

obtaining a Patent
LO2: Analyse the basic requirements for PM: Chapter 5
obtaining a patent with reference to
section 25 in the Patents Act 57 of Gentiruco A.G. v Firestone
1978. South Africa (Pty) Ltd 1972
LO3: Discuss amendment and correction (1) SA 589 (A)
in regard to patents.
LO4: Analyse the steps and principles that Ensign-Bickford (South
form part of the process to register a Africa) (Pty) Ltd and Others v
patent. AECI Explosives & Chemicals
Ltd 1998 BIP 271 (SCA)
Ss 25, 50 and 51 in the
Patents Act 57 of 1978.
University of Pretoria v
Registrar of Patents and
Others 2011 BIP 41 (CP)
Theme 3: Revocation of a patent
LO5: Identify the grounds upon which PM: Chapter 5
patents can be revoked.
LO6: Analyse the steps and principles that S 61 of the Patents Act 57 of
form part of the process to revoke a 1978
patent.
Buzbee (Pty) Ltd v Registrar
of Patents 2010 BIP 42 (CP)

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Theme 4: Infringement of a patent

LO7: Identify who has locus standi (legal PM: Chapter 5
standing) concerning the
infringement of a patent. Ss 45, 47, 48, 67, 68 and 69A
LO8: Discuss the determination of and of the Patents Act 57 of
the various acts of infringement in 1978.
regard to patents.
LO9: Analyse principles and aspects
relating to the infringement of
patent with reference to:
• Presumptions in relation to
new substances.
• Marketing approval.
• Construction of the claims.
• The role of expert evidence.
• Restoration.
• Patents of addition.
LO10: Apply principles in relation to
patents to a given scenario, with
reference to the following:
• Defences to infringement.
• Contributory infringement.
• Remedies for infringement.

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Learning Unit 6 Designs

Overview:

A “registered design” refers to the granting of an intellectual property right to a proprietor of

a design. Although the law of designs is closely related to other forms of intellectual property,
namely copyright, trademarks and patents, it relates solely to the outward appearance of an
article. South African design law provides for the registration of both aesthetic and functional
designs.

In this learning unit, we will look at the concept of designs and its linkage to other forms of
intellectual property; the legislative framework concerning designs; the basic requirements for
obtaining a registered design; the revocation of a design; the infringement of a registered
design and the law as it pertains to the concept of traditional designs.

Please work through Themes 1,2,3,and 4, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please also ensure that you complete all activities on Learn.

The challenge you may experience in this learning unit relates to understanding the legislative
framework governing designs, the basic requirements and procedure for obtaining a registered
design. Please note what constitutes infringement and pay attention to the defences and
remedies available in relation to designs.

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Learning Unit 6: Theme Breakdown

Sessions: Theme 1: Introduction to the law of Prescribed Material (PM)
24 – 26 designs
Related LO1: Analyse the link between designs PM: Chapter 7
Outcomes: and:
MO01 • Patents. Designs Act 195 of 1993
MO02 • Trademarks.
MO03 • Copyright.
MO04 LO2: Discuss the legislative framework
MO05 and international arrangements in
relation to designs.
Theme 2: The Basic Requirements for
Obtaining a Registered Design
LO3: Analyse the basic requirements for PM: Chapter 7
obtaining a registered design. Ss 14, 15, 23,26, 27 and 32 of
LO4: Discuss the requirements for the Designs Act 195 of 1993
registrability of a design. Clipsal Australia Pty Ltd v
LO5: Analyse concepts and principles Trust Electrical Wholesalers
relating to the procedure for [2007] SCA 24 [RSA]
registering a design. S 31 of the Designs Act 195
LO6: Discuss principles and aspects of 1993
relating to the infringement of
patent with reference to:
• Correction and amendment of
designs.
• Restoration.
• Assignment.
LO7: Discuss the grounds of revocation of
a design.
LO8: Explain various concepts in relation
to the application for revocation.

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Theme 3: Infringement of a design

LO9: Identify who has locus standi (legal PM: Chapter 7
standing) concerning the Ss 20 and 35 of the Designs
infringement of a design. Act 195 of 1993.
LO10: Discuss the determination of and
the various acts of infringement in
regard to designs.
LO11: Apply principles in relation to
designs to a given scenario, with
reference to the following:
• Defences to infringement.
• Remedies for infringement.
Theme 4: Traditional designs
LO12: Apply principles and concepts PM: Chapter 7
relevant to traditional designs to a
Intellectual Property Laws
given scenario, with reference to Amendment Act 28 of 2013.
the following:
• Basic requirements for
obtaining a traditional design. Ss 1, 53A,53B, 53C, 53D, 53E
• The procedure for registration and 53F of the Designs Act
of a traditional design. 195 of 1993.
• Revocation of a traditional
design.
• Infringement of a traditional
design.
• Benefit sharing.
Learning Unit 7 Intellectual Property Rights and the Constitution

Overview:

Intellectual property rights are regarded as sui generis categories of property in private law,
and as such, they may be regarded as property for the purposes of the right to property as
enshrined in the Constitution of the Republic of South Africa, 1996. The right to property, as
provided for by section 25 of the Constitution, lays down strict requirements that the State
must adhere to before a deprivation or expropriation of property, which includes intellectual
property, will be regarded as being constitutionally valid.

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In this learning unit, we will look at intellectual property rights and section 25 of the
Constitution, 1996; intellectual property rights and constitutional rights in foreign law; and the
connection between international human rights law and intellectual property.

Please work through Theme 1, together with the relevant sections of your prescribed source/s.
To ensure that you are working towards mastering the objectives for this learning unit, please
also ensure that you complete all activities on Learn.

The challenge you may experience in this learning unit relates to understanding the
background of section 25 of the Constitution as well as the relevant case law. Being able to
apply case law to given scenarios will be your biggest challenge with this module but if you
apply the rules of FIRAC appropriately, you should manage this learning unit with ease.

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Learning Unit 7: Theme breakdown
Sessions: Theme 1: The relationship between
27 – 30 intellectual property rights and
the Constitution
Related LO1: Discuss the court’s views relating to
Outcomes: section 25 of the Constitution 1996
MO01 and Intellectual Property Rights
MO02 with reference to Certification of
MO03 the Constitution case.
MO04 LO2: Analyse the court’s decision on the
MO05 relationship between intellectual
property rights and the
Constitution, 1996, in the Laugh It
Off case.
LO3: Discuss deprivation and
expropriation of intellectual
property rights in relation to
section 25 of the Constitution,
1996.
LO4: Apply principles relating to section
25 of the Constitution, 1996, and
intellectual property rights to a
given scenario.
LO5: Compare intellectual property
rights as they are perceived in
terms of the Constitution, 1996,
with the following foreign legal
systems:
• Irish Law
• German Law
• Australian Law
• Law of the United States of
America (USA)
LO6: Analyse international law,
principles and concepts relating to
the development of a human rights
framework for intellectual property.
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INPL7322/ INPL7321
Prescribed Material (PM)
PM: Chapter 11
Ex Parte Chairperson of the
Constitutional Assembly: In re
Certification of the Constitution of
the Republic of South Africa 1996
1996 (4) SA 744 (CC) para 75.
Laugh it Off Promotions CC v
South African Breweries
International (Finance) BV t/a
Sabmark International 2006 (1) SA
144 (CC).
First National Bank of SA Ltd t/a
Wesbank v Commissioner, South
African Revenue Service; First
National Bank of SA Ltd t/a
Wesbank v Minister of Finance
2002 (4) SA 768 (CC)
M du Bois Intellectual Property as
a constitutional property right: the
South African approach 2012 24
SA Merc LJ 174 – 190 (see pages
178 – 185).
Pistorius, T. Trade-mark
tarnishment: Should we “Laugh it
off” all the way to “Telkomsucks”
and “Hellcom”? 2004 SA Merc LJ
727
Van der Walt AJ and Shay RM
Constitutional analysis of
Intellectual Property 2014 17:1
PER/PELJ 51.
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Glossary of Key Terms for this Module

Term Definition My Notes
Copyright A right over protected works.
Patent A statutory monopoly right which provides for
the protection of an invention.
Registered Design Provides for the protection of the appearance
of an article resulting from a particular design
being applied to the article.
Unlawful Wrongful competition, not within lawful
Competition bounds.
Passing Off Protects the goodwill that is a result of an
existing reputation.
Dilution Trading off the goodwill attached to a well-
known brand to promote own products.
Counterfeit goods Goods that are the result of counterfeiting.
Trademark Badge or symbol that a producer of goods or a
supplier of services uses in relation to his
goods or services in order to inform the public
that he is the source or provider of those goods
or services.
Tarnishment The unauthorised use of a trademark which
links it to inferior products or which portrays it
in an unflattering way, so that the trademark
loses value.
Literary works Combination of letters and/or numerals which
embody the results of intellectual effort or skill
emanating from the creator of the work.
Originality Work should emanate from the author himself
and not be copied.
Plagiarism The practice of taking someone else’s work or
ideas and passing them as your own.
Reverse The reproduction of another manufacturer’s
Engineering product following detailed examination of the
design of the product and its components.
Royalties Royalties usually deal with payments for the
right to use intellectual property, like
copyrights, patents, and trademarks.

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Brand A make or kind of goods bearing a trademark.

Leaning On Where a person or business uses the
trademark of another to promote its own
performance and goodwill.
Puffery A statement that a company’s own product is
better than a competitor’s.
Parallel Imports Refers to the importation and dealing in so-
called ‘grey goods’ which are goods
manufactured in one jurisdiction by or with the
permission of the intellectual property
owner’s consent. These are genuine goods but
intended for sale in another country.

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