MRF is very proud of its offices in Ferndale, Randburg. If you are interested to see what our offices and boardroom look like, take a peek at this video that was developed for television advertisement. Better yet, schedule an appointment to take advantage of our 30 minute free consultation offer so that you can see our beautiful surroundings for yourself and we may meet you in person.
MRF is very proud to be the trade mark practitioners for the LOVE JOZI brand. LOVE JOZI has gone from strength to strength over the 10 years that it has been in existence, as is evident from the double page spread in the July 2015 Marie Claire magazine. Congratulations to Bradley Kirshenbaum and his team on a wonderful achievement!
Read the entire article by clicking here.
Special thanks to Associated Media Publishing for permission to use the article.
How often has one heard this refrain from one’s own child? Not often, we can bet. However given the amendments to the National Road Traffic Act 93 of 1996 effective 1 May 2015, buckling up is now compulsory for children under the age of 3 years.
Every day, nearly 40 people die on South African roads, and 3 to 4 of these deaths are children. South Africa has the third highest road death toll in the world, following the Cook Islands and Libya respectively.
Use of seatbelts for children in foreign countries
Prior to 1 May 2015 in South Africa, there was no penalty for a parent who travelled in a car without ensuring that their 3 year old or younger passenger was strapped safely into a car seat designed for such purpose. This placed South Africa in the same ranking as China, India, Kenya, Indonesia, Madagascar, Malaysia and Mauritius who also have no legislation for compulsory seat belts for children in vehicles. Monaco is one of the few countries that does not enforce compulsory seat belt use and has no legislation for children to be restrained within a vehicle.
However, in South Africa, as from 1 May 2015, parents who do not strap their under the age of 3 year old child into a car seat will be issued with a traffic fine. We are certain that the law applies not only to parents but to any driver transporting a child under the age of three.
Risks of non- use of a seatbelt
Failure to use a seatbelt is a major risk factor for road traffic injury and deaths among vehicle occupants. When a motor vehicle crash occurs, a car occupant without a seat belt will continue to move forward at the same speed at which the vehicle was travelling before the collision and will be catapulted into the front of the vehicle. More than half of all countries have implemented a child restraint law, but these represent just 32% of the world’s population.
Response to the new rules
Unlike seatbelts, child restraints are not automatically installed in vehicles and must be purchased and fitted by parents. This makes it more challenging to achieve higher usage rates, especially in low and middle income countries. There are those who have indicated that generally speaking they are happy to use the child restraints however their children do not like being restrained in a car seat and cry uncontrollably until they reach their destination. Some have indicated that a child car seat is an expense which they are just unable to afford.
Appropriate child restraint use may be limited by access and cost or be impractical because of large family size. In addition, parents must make a number of decisions about what type of child restraint to choose, where to place it and how to install it which can also limit uptake. However, the argument against this type of defence is that the value of one’s child is greater than the expense of a proper car seat for one’s child.
Conclusion
It is evident that more countries need to adopt child restraint laws. This regulation is a welcome one in South Africa which we hope all parents, and motorists transporting young children, will follow.
Kim Rademeyer – Partner
kim@rademeyer.co.za
It may have been premature to dub the Mayweather–Pacquiao bout on 2 May 2015 the ‘Fight of the Century’, when we had only seen slightly more than fourteen percent of the century and zero percent of the fight; and given the scandal of Pacquiao’s rotator-cuff injury, it seems as though the pundits were definitely wrong. At least the 20th century waited 74 years before declaring its best boxing match.
Nevertheless, it seems that Pacquiao’s fight is far from over. No less than thirty-two class-action lawsuits have been filed against him, his promoters, Top Rank, and his manager, Michael Koncz. In each of these lawsuits, the plaintiffs are respectively claiming at least five million US dollars compensation (the maximum allowed in class-action lawsuits in the USA) from the defendants for supposedly duping pay-per-view watchers, fans who bought tickets to the fight and even gamblers who bet on Pacquiao. The general logic seems to be that the members of the class of people being represented would not have paid to see the fight or bet on Pacquiao had he disclosed his injury.
Prior to the fight, Pacquiao signed a Nevada Athletic Commission medical questionnaire wherein he declared that he had not suffered any injuries to his shoulder or any other part of his body that may affect his performance in the fight or put his health at risk. It seems most likely that the medical questionnaire was not a tripartite agreement and that it only created a legal relationship between team Pacquiao and the Nevada Athletic Commission. The plaintiffs clearly believe otherwise, but team Pacquiao also alleges that his shoulder injury was in fact known to the organisers of the fight through other means of disclosure. For this reason alone, the lawsuits against Pacquiao should apparently fall flat. But this would be boring, so let us assume then that Pacquiao’s medical questionnaire also created an obligation to the public, that he did lie to the fight organisers and that there is in fact a cause of action as the plaintiffs have argued. Would the class of people being represented not have purchased tickets or pay-per-view hours (both of which were excessively priced, of course) or bet on Pacquiao had they known of the injury?
The question above would certainly be hard to answer for the people who want their money back for their tickets and pay-per-view hours. Who wouldn’t pay to see Mayweather fight, even if his opponent was at a disadvantage? Their case would be difficult to prove, and it appears as though the best argument for the spectators lies in a statement by Texan plaintiffs that they did not get their money’s worth as “[t]he fight was not great, not entertaining, not electrifying. It was boring, slow and lacklustre”. Therefore, they want their money back? A similar lawsuit was brought, unsuccessfully, against pop band Milli Vanilli when disappointed fans realised that the vocalists had been lip-syncing through their live shows. But everyone knows that Britney Spears lip-syncs and her shows still sell out; and in Las Vegas too, no less. Therefore, it seems as though the Britney Spears defence should work for Pacquiao.
However, would the gamblers who bet on Pacquiao still have bet on him had they known of the injury? Almost definitely not, or at least not as much, so it is fair to assume that this argument may be valid. Nevertheless, this assumption could prove to be wrong as well. One of the many problems with gambling is that it is not enforceable. In many countries, including South Africa and the USA, gambling agreements are against public policy and, while not prohibited by law, they are not enforceable through the law, which is why you pay for your chips upfront at the casino. A problem now arises for the gamblers, because while Pacquiao may have ruined their gambling agreements, these agreements do not actually exist in the eyes of the law. Therefore, the only remaining avenue would be delict. However, for a delictual claim, one would still need to prove unlawfulness.
Is it unlawful to not disclose all the facts to people who would potentially bet on you? Here too, it would be reasonable for Pacquiao to be in the clear because his medical questionnaire probably only created a duty to the Nevada Athletic Commission. If there were a legal duty between an athlete and gamblers, this logic would require a separate ‘Gambling Assurance Form’ (or something similar) that one would need to sign to let potential gamblers know, roughly, what their odds were in betting on you. Not only does this seem very impractical, but such an undertaking, given its link to gambling, would probably not be legally enforceable anyway. If it were, then gamblers who bet on Mayweather could just as easily sue for damages because they would have bet more money on him, and thus won more, had they known that his opponent was injured.
But the blame needs to lie somewhere, probably. Perhaps the most likely culprits are the fight organisers. In the end, they are the ones that handle most of the money, authorise and oversee the betting and ensure compliance with the rules. The organisers must hold some responsibility to the viewing and betting public before setting the ticket and pay-per-view prices and opening up the floor to the bookies. Should that responsibility not flow further than taking Pacquiao’s word when he ticked the box on the right? Was it reasonable to accept all that money and put Pacquiao in a ring with the world’s other greatest boxer, who just happens to be undefeated and have twelve centimetres more reach on his jab, without even performing an independent medical examination? Maybe not.
Given the many legal hurdles in place, the lawsuits against Pacquiao and his team seem likely to suffer from a technical KO, which makes the very large plaintiff turnout surprising. But while some are clearly disappointed with the entertainment value of the fight itself, it is hard to ignore how much interest and social debate these two fighters have stirred up without so much as a blood-nose in the ring. The Fight of the Century? Perhaps not. And the title of Court Case of the Century has already been clinched by an athlete of our own. Maybe the best the plaintiffs can hope for is a rematch and a few complimentary Britney Spears tickets.
Matthew du Plessis – Practitioner
matthew@rademeyer.co.za
Kim Rademeyer – Partner
kim@rademeyer.co.za
In an interesting turn of events that has caused much speculation amongst the public, Astrid Ludin, the Commissioner of the Companies and Intellectual Property Commission (CIPC), is the latest senior public service sector head that has recently been targeted for suspension.
The Business Day reported that Ms. Ludin, who has served as the CIPC watchdog since 2011, had received a suspension notice over allegations related to procurement of services and payment of salaries in contravention of the Public Finance Management Act after a forensic report was conducted by Gobodo Forensics and Investigative Accounting (the Gobodo report). The Gobodo report found that Ms. Ludin had irregularly appointed accounting firms HT & Co and Calculus without following proper procedures. Other alleged irregularities related to her approval of a R25,000 scholarship for an employee, appointment of maintenance and contract workers, an information technology contract and salary adjustments for staff.
At the time of receiving the suspension notice, Ms. Ludin stated: “My understanding is that the minister will apply his mind before deciding on a suspension. There are no grounds for my suspension in my view and I am sure the minister and his legal advisers will come to a similar conclusion”.
Mr October, the Director General of the DTI explained that the findings of the Gobodo report did not relate to matters of corruption or personal gain by Ms. Ludin but to compliance with technical procedures and processes. Mr. October added that Ms. Ludin had done “an excellent job” in turning around the CIPC. Indeed, under Ms. Ludin’s supervision, the commission has undergone significant improvements over the last few years. The CIPC launched their modern new website in 2014 which is accessible and interactive. It is now possible to do most applications and submissions electronically online and the CIPC has slowly begun to achieve faster turnaround times.
Rob Davies, the DTI Minister, claimed that Ms. Ludin had failed to take employees along with her in her drive to modernise the commission, which he said was wracked by instability. He commented that “It was not an easy labour relations environment. There were a number of issues which we felt needed to be attended to and there was a certain amount of resistance from Ms. Ludin, who said I did not have the authority to tell her to do various things. It was becoming increasingly difficult for her to retain the confidence of staff”. Mr. Davies also stated that the trade union had presented the DTI with a petition in 2014 raising questions of management and calling for Ms. Ludin’s resignation. This was what inspired a forensic investigation into the various alleged irregularities.
Ms. Ludin commented that the commission, its staff and its ability to deliver it service had been periodically compromised, particularly when the DTI had declined to support management’s authority to run the organisation. After a paperless back-office system and automated processing were introduced, the CIPC experienced protests by NEHAWU (National Education Health and Allied Workers’ Union) on two occasions, against which Ms. Ludin claims the DTI had failed to support her. Ms. Ludin stated: “I have highlighted to the minster the risk that the DTI support for the NEHAWU agenda is perceived internally as a licence for illicit activities with intermediaries and demands for bribes”.
Ms. Ludin communicated to her staff that she felt a lack of support from her Department of Trade and Industry (DTI) minster and that there seemed to be a concentrated effort to remove her from her position, which ultimately led to her tendering her resignation, effective 1 June 2015. She stated: “I am resigning because I am no longer willing to exercise the role of commissioner without the support of the minister of the DTI, to whom I report, in the face of sporadic illegal industrial action intended to create a climate of intimidation, and allegations of misconduct and corruption intended to discredit me and some members of my management team”.
We can’t help but wonder how Ms. Ludin’s resignation will affect the operation of the CIPC. Only time will tell…
Kim Rademeyer – Partner
kim@rademeyer.co.za
While the Easter holidays mark an important event in the religious calendar, little kids everywhere (including the little kid inside of us all) also know it as a holiday filled with chocolate eggs and bunnies.
It is also the time of year when chocolate companies rub their hands with glee as sales sky rocket. Companies use this opportunity to create Easter branded products you may even begin to recognise on the shelves based on their unique appearance. While you are munching away through your stash of chocolate treats, here is a little food for thought:
Is that chocolate bunny subject to IP protection? The European Court of Justice was asked to rule on that very issue.
On 18 May 2004, Lindt filed an application for registration of a Community trade mark. Registration was sought for the three-dimensional mark consisting of the shape of a chocolate rabbit with a red ribbon and which, according to the description in the application was red, gold and brown.
The goods in respect of which registration was sought was in Class 30 of the Nice Agreement of 15 June 1957 and corresponded to the following description “Chocolate and chocolate products”. By decision on 14 October 2005, the examiner rejected the application on the basis that the mark was devoid of any distinctive character. The examiner also held that the mark did not acquire distinctive character through use as the evidence provided only related to Germany.
Lindt filed an appeal to the decision and on 11 June 2008, the Appeal Board held that the shape, the gold foil and the red ribbon with a small bell, considered separately or as a whole, could not give it distinctive character in relation to the goods concerned. It was held that rabbits are one of the typical shapes which chocolate products may take, especially at Easter and the mark was held to be devoid of distinctive character. A further appeal was filed the European General Court, who upheld the decision of the Appeal Board.
The matter was then referred to the European Court of Justice (“ECJ”). Lindt argued that the crouching bunny in combination with the gold foil, red ribbon and bell were distinctive as customers were able to distinguish their products based on this unique appearance. Lindt also argued that the mark had acquired distinctive character through use in Germany and Austria and the United Kingdom.
The ECJ held that an assessment of whether the shape of the rabbits on the market are similar or whether there is, from the point of view of the consumer, a difference between the rabbit at issue and the other shapes of rabbit, so that the shape of rabbit at issue has distinctive character is a question of assessment of the perception of consumers and therefore a question of fact. The ECJ held that the facts could not be reassessed as there was no mistake in the interpretation thereof. The General Court’s ruling in this regard was therefore upheld.
It was also held that in order to prove that a mark has acquired distinctive character through use; proof thereof must be provided at the time of filing. As Lindt had not provided this proof at the time of filing, it was held that the mark did not have distinctive character and the appeal was dismissed.
So it appears that the Easter bunny is not, in fact, distinctive.
Hillary Brennan – Practitioner
hillary@mrf.co.za
As trade mark practitioners, we are always emphasising the importance of creating the right business name. One would assume it is equally important to apply one’s mind to naming one’s own child. However, it seems that not everyone takes it quite so seriously…
A French court has prohibited parents from naming their baby girl Nutella after Michele Ferrero’s* popular hazelnut spread.
The court ruled that the name would make her the target of derision, stating that “it is contrary to the child’s interest to have a name that can only lead to teasing or disparaging thoughts”.
The court ordered that the baby girl be named “Ella” instead.
It’s hard enough to find a baby name that both parents like, let alone one that the state approves. Believe it or not, the local authorities in several countries, including Iceland, Germany and Japan, have been known to restrict names in certain circumstances. For example:
Other parts of the world, such as the USA and UK, have far more liberal name laws. American parents see the ability to name their children whatever they please as an important expression of their freedom of speech. Some parents think it is fun to give their kid a wacky name. Others believe that an unusual name will bestow a unique personality on a child. However, some parents take things a little too far. For example, a census record from the 18th and 19th centuries revealed people named King’s Judgement, Noble Fall and Cholera Plague. There have been 20 people named Noun, 458 named Comma, 18 called Period and only 1 called Semicolon. Some offensive and risqué names have also been known to be permitted in liberal countries, such as Ima Hoare.
Michael Sherrod, co-author of “Bad Baby Names: The Worst True Names Parents Saddled Their Kids With” says that children with unusual names tend to get a lot of abuse at school but then embrace their name when they get older. There is no question that some of the more offensive names could be considered child abuse, but Sherrod does not believe that legislation is necessarily the answer: “I’m not saying courts should not intervene, but I would prefer they do so only when parents cannot agree and the item gets taken to court. I think, for the most part, parents are pretty good at compromise”.
This does not stop the courts from intervening on occasion in America. When Thomas Boyd Ritchie III tried to change his first name to the Roman numeral III, his request was refused by a California court on the basis that this would be “inherently confusing”. While we might agree with the reasoning, should courts really be able to interfere with a parent’s right to name their child?
We’re guessing your name doesn’t sound so bad now
Kim Rademeyer – Partner
kim@rademeyer.co.za
According to the Companies Act 71 2008, and the Close Corporation Act 96 1984, a company, or close corporation (“CC”), which fails to file its annual return for two or more consecutive years or if the Registrar has reasonable cause to believe that it is not carrying on business or is not in operation, may be deregistered by the Registrar.
The Registrar must give notice to the company or CC that it will be deregistered unless good cause is shown. The effect of deregistration is that a company or CC is deprived of its legal personality. All its property, movable or immovable, corporeal and incorporeal, passes into ownership of the state as bona vacantia (Miller and Others v Nafcoc Investment Holdings Co Ltd and Others 2010 (6) SA390 (SCA).
There is no provision made to inform potential creditors of the pending deregistration. A debt due to a creditor of a company or CC that has been deregistered is not extinguished, but rendered unenforceable.
Under the previous Companies Act 61 of 1973 if a company or CC had assets against which a creditor wished to execute, but it was in the process of being deregistered or had finally been deregistered, an application to court to restore the company or CC could have been made. However, according to Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic (Pty) Ltd the reinstatement of the registration of a company, which had been deregistered, falls within the powers of the CIPC and not a court.
Also, in ABSA Bank Limited v Voigro Investments 19 CC the Western Cape High Court delivered this judgment: “if a close corporation has been deregistered for failing to file its annual returns, the registration thereof can be reinstated only by the commissioner in terms of section 82(4) of the Companies Act of 2008. No provision is made for the restoration of a deregistered company or in this case a deregistered close corporation, by order of court.”
This later judgment was set aside in ABSA Bank Limited v The Companies and Intellectual Property Commission of SA. It found that section 83(4) of the Companies Act 2008 allowed the liquidator of a company or any other interested person to apply to court for an order declaring the deregistration to be void. This applies to cases where a company or CC’s name has been removed from the register due to deregistration or liquidation. An interested party may apply to the CIPC for restoration in terms of section 82(4) or to the court in terms of section 83(4).
Both these processes are expensive and the CIPC has placed a number of obstacles in the path of a creditor wishing to apply to it to have a company or CC restored.
The procedure to apply to the CIPC to reinstate a company or CC includes submitting the required forms and payment of all the outstanding annual returns as well as a restoration fee.
Some of the required documentation for an application to reinstate a company or CC, such as certified copies of identification documents of the directors/members, letters from National Treasury and Public Works, and an affidavit indicating the reasons for non-filing of annual returns, make the process cumbersome, if not impossible, as such information is not readily available to creditors.
It would seem, in these circumstances, as if a creditor is not afforded its right to just administrative action.
Another option for a creditor is to enforce its rights against the members of the Corporation.
Section 26(5) of the Close Corporations Act provided that if a close corporation was deregistered while having outstanding liabilities, the persons who were members at the time of deregistration would be jointly and severally liable for those liabilities. This provision has been repealed by the coming into law of the new Companies Act.
This is not good news for creditors, who previously were able to use section 26(5) as an effective tool for debt recovery. The provisions of section 26(5) still, however, apply to close corporations deregistered prior to 1 May 2011.
Close corporations and companies are now governed by the new Companies Act which provides that deregistration does not affect the liability of any former director, shareholder (or member) or any other person for any act or omission which took place before the company was deregistered. Members/ directors who knowingly are a party to reckless or fraudulent dealings of the close corporation will still be personally liable for debts of the close corporation, since the provision of the Close Corporations Act providing for this liability remains unchanged.
Does the action of a member or director who allows deregistration of its corporation or company, while having full knowledge of an outstanding debt to any third party, not amount to reckless or fraudulent behaviour?
12 April 1955 history was made when the National Foundation for Infantile Paralysis announced: “The vaccine works. It is safe, effective and potent”.
This announcement came as a welcome relief to millions of American parents after a nationwide trial using an experimental polio vaccine was conducted. More than 1.8 million children were signed up by frantic parents to be part of the trial. Kids were injected with either the vaccine or a placebo. It was a double blind study, neither the child nor the caregiver knew who was receiving the vaccine or a placebo. A nationwide trial of an experimental vaccine using school children as virtual guinea pigs would be unthinkable today.
A polio-survivor said it shows how much people feared polio that mothers and fathers were willing to accept the word of researchers that the vaccine was safe.
One year after the trial started, the National Foundation announced that the Salk vaccine proved 80 to 90 percent effective in preventing polio. In 1961 the rate of polio had dropped by 96% in the United States.
In an interview Edward R. Murrow asked Salk who owned the patent to the polio vaccine. Salk replied “Well, the people, I would say. There is no patent. Could you patent the sun?” Over the last half-century, Salk’s rhetorical question has become the cry for those who rally against pharmaceutical patents.
Dr Salk might have believed that personal gain is secondary to helping mankind and meant every word. He did, however, not mention that the National Foundation for Infantile Paralysis looked into patenting the Salk vaccine and concluded that it could not be patented because the vaccine did not meet the novelty requirements and would not be considered a patentable invention by the standards of the day.
This raises the interesting question of the distinction between a discovery, which is not patentable, and an invention. Should a vaccine be considered a natural occurring substance i.e. a discovery, or a product of human innovation and engineering i.e. an invention?
A vaccine contains live or dead cells from a pathogen itself, or genetically modified versions of the virus or bacteria. When considering that the flu vaccine has to be made anew every year and involves months of work by highly trained scientists, it would be considered a stretch to say vaccines are naturally occurring.
The US Supreme Court in 1980 made a clear distinction between a discovery and an invention. Products of nature, like the sun, are not patentable; however isolating and purifying a product of nature may render it patentable if it fullfils all the other requirements for patentability. Despite the Supreme Court not specifically addressing the patentability of vaccines, thousands of patents relating to vaccines have been issued in the United States.
Even though the decision not to apply for a patent for the polio vaccine was a purely academic one, it might be said that morally it was the right one. The vaccine trial was made possible by volunteers. No money was received from federal grants or pharmaceutical companies. The trial was financed by donations made to the National Foundation for Infantile Paralysis. David Oshinsky wrote: “It’s the incredible organisation involved, with tens of thousands of mothers and families coming together to save their children. And it was all done privately.
It could therefore be said that Salk was correct in saying that the “patent” belongs to the people.
Earlier this year the Department of Health published draft amendments to the Regulations relating to the Foodstuffs, Cosmetics and Disinfectants Act, 1972, which regulates the labelling and advertising of foodstuffs.
The purpose of the amendment is to reduce the prevalence of non- communicable diseases, to provide consumers with factual information so that they can make healthier choices as well as to rectify certain loopholes in the current legislation.
What does this all mean for you as the consumer and how might it impact your weekly trip to the supermarket? Some of the changes include:
Many of the provisions are aimed at providing a consumer with factual information free from deceptive or misleading marketing terms in order to enable the general public to make healthier food choices.
What recourse does a consumer have if he is subject to misleading or deceptive marketing or labelling of foodstuffs? The Foodstuffs, Cosmetics and Disinfectants Act makes it an offence to describe for purposes of sale, any foodstuffs in a manner which is false or misleading in respect of, among others, the origin, nature, substance, composition and quality. Furthermore, section 41 of the Consumer Protection Act prohibits false, misleading, deceptive representation or to falsely state, imply, or fail to correct an apparent misrepresentation that goods have ingredients or qualities that they do not have.
An aggrieved person can also lodge a complaint with the Advertising Standards Authority, should the advertising of the foodstuff be misleading or deceptive. In particular, the Food and Beverages Code provided by the ASA specifically deals with misleading presentations in advertising for food and products. The complaint is lodged with the ASA who after receiving submissions from the opposing party, adjudicates on the matter.
It remains to be seen whether the more controversial provisions of the Regulations will be maintained. Perhaps our little darlings’ calls for Ronald McDonald’s treats will be a thing of the past.
Hillary Brennan – Practitioner
hillary@mrf.co.za
