Page 96 - University of Pretoria RESEARCH REVIEW 2018

Intellectual property and IP rights –
application and enforcement
Chris Job, Centre for Intellectual Property Law
Intellectual Property (IP) is an essential driver and component of economic growth and IP rights (IPRs) constitute highly valuable properties and exploitable assets, also for foreign investors. This is particularly relevant in the present era of knowledge-based economies and the Fourth Industrial Revolution characterised by the convergence of digital, physical and biological technologies in ways that are changing the world.*
South Africa has a strong tradition of ensuring local statutory compliance with the numerous international conventions and treaties that exist in the field of IP,
and of effective enforcement of IPRs through our judicial system. Significant efforts have also been made towards harmonising our statutory IP regime with the laws of our major trading partners. However, it is in the manner of application of our IP laws and the enforcement of IPRs by the courts that the nub of the problem lies.
Chris Job, an honorary professor at the Centre for Intellectual Property Law, has pursued research related to the interpretation and enforcement of IPRs in South Africa. His research, and that of the Centre for IP Law, have primarily been in relation to the enforcement of trade mark rights.
The focus has been on ways in which our senior courts have addressed traditional trade mark infringement situations (involving the likelihood of consumer deception or confusion), and the more recently recognised infringement by trade mark dilution (involving diminution of the reputation and distinctiveness of well-known trade marks).
In an article published in 2018 in the South African Intellectual Property Law Journal (IPLJ 92), Job reviews the
inconsistent manner in which the Supreme Court of Appeal and other senior South African courts have applied the trade mark infringement requirement that the parties’ goods or services be either identical or sufficiently ‘similar’ to warrant a finding of the likelihood of consumer confusion and, hence, infringement.
This inconsistency has led to a degree of legal uncertainty. Rulings in the senior appeal courts in the
UK and the EU show that a far more analytical process is followed, leading to balanced ‘global assessment’ of whether a likelihood of consumer confusion existed. In the article, Job proposes two possible alternative approaches, which would involve amendments to the Trade Marks Act, namely: to delete the ‘similar’ goods or services requirement entirely; or to extend trade mark protection to ‘similar or related’ goods or services.
Other areas of research by Professor Job have included a comparative study of aspects of trade mark dilution
law in South Africa, the USA and the EU, published in the South African Mercantile Law Journal.
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* Chris Job is a former chairman and partner of Adams & Adams Attorneys, South Africa.