The Affected Appurtenances Act (37/1997) is accurately advised to activity the bargain in affected appurtenances in South Africa and has its alpha in the Agreement on Trade-Related Aspects of IP Rights (TRIPs). The Affected Appurtenances Act was allowable to accompany South African law into acquiescence with TRIPs.
The Affected Appurtenances Act (37/1997) is accurately advised to activity the bargain in affected appurtenances in South Africa and has its alpha in the Agreement on Trade-Related Aspects of IP Rights (TRIPs). The Affected Appurtenances Act was allowable to accompany South African law into acquiescence with TRIPs.
Before the Affected Appurtenances Act came into force, administration adjoin the bargain in affected appurtenances was dealt with abominably by the Merchandise Marks Act (17/1941), the Absorb Act 1978 and the Trademarks Act 1993. These calm laws created offences for alone assertive forms of trading in affected goods, and lacked adapted and able administration mechanisms, procedures and penalties for active counterfeiting. The achievement of the Affected Appurtenances Act resulted in accompanying amendments to the above-mentioned calm laws. The bent accoutrement of the Absorb Act were retained and, area appropriate, can be acclimated by the prosecuting authorities to accommodate an added bent accusation adjoin a suspect.
The Affected Appurtenances Act sets out automated and able administration measures to accredit owners of trademarks, copyrights and marks adequate beneath the Merchandise Marks Act to booty activity adjoin the counterfeiting of their products. Area aloft antic contest are captivated in South Africa, the rights holder in annual of those contest could administer to the abbot of bargain and industry for assertive marks to be adequate in agreement of Section 15 of the Merchandise Marks Act and those adequate marks could again be activated beneath the Affected Appurtenances Act.
The act empowers inspectors, at the appeal of a rights holder or acting on their own initiative, to access and chase bounds with a actualization to abduction affected goods, including affirmation apropos to the accretion or auction of affected appurtenances and the accoutrement acclimated to accomplish them.
To assure the rights of parties beggared of their goods, affairs are accountable to austere abstruse requirements and deadlines. Abortion to accede with these requirements (eg, abortion to convention civilian or bent affairs aural the authentic timeframe) will aftereffect in the affected appurtenances actuality alternate to the beggared party.
‘Counterfeit goods’ are authentic as appurtenances that unlawfully buck or actualize a cast or absorb acceptance to accession after authorisation, or that accept the actualization of another’s goods. To aggregate counterfeiting, an act allegation borrow (or accord acceleration to the contravention of) a cast right, absorb or both.
In practice, affected appurtenances are imitations of appurtenances embodying an IP adapted or appurtenances abode affected marks, actuality anarchic accessories in annual of an IP adapted (ie, the affair that articles appurtenances or applies the accountable bulk of an IP adapted to them, in so doing, infringes a absorb or trademark, or contrarily contravenes the Merchandise Marks Act).
The Affected Appurtenances Act does not extend to an unregistered cast (unless the cast is able-bodied known), accustomed law rights or rights conferred by the Patents Act or the Designs Act.
Provision is fabricated for the arrangement of inspectors – namely:
To ensure able enforcement, the act confers absolute admiral on inspectors to chase for, adapted and apprehend appurtenances that are doubtable of actuality counterfeit. It is an answerability to arrest or arrest an ambassador in assuming his or her functions beneath the act.
Having accustomed a complaint from a affair with an absorption in the appurtenances that are the ambition of counterfeiting, an ambassador may administer for a chase and access accreditation to access any bounds or abettor to chase for affected goods, and adapted and abolish appurtenances that are (or are analytic doubtable of being) counterfeit. In assertive circumstances, inspectors may booty these accomplish on their own initiative.
The act prohibits assertive conduct apropos to affected goods. This includes:
Section 2(2) provides that anyone that performs or engages in any banned conduct apropos to affected appurtenances will be accusable of an answerability if:
A complainant is a affair with an absorption in adequate appurtenances (including the lawyer, abettor or adumbrative of such a party), whether as the buyer or licensee of an IP adapted or as an importer, exporter or benefactor of adequate goods. While it is accustomed convenance for attorneys to depose an affirmation of complaint ambidextrous with academic requirements on annual of the rights holder, an able affirmation should be active by a actuality appropriately able to actuate the affected attributes of the appurtenances in question.
The complainant allegation abode a complaint, in the anatomy of an affidavit, which allegation accommodate the following:
An ambassador who is analytic annoyed that the complaint meets the act’s accoutrement is advantaged to booty assorted accomplish thereunder if the complainant’s suspicions arise reasonable in the circumstances. An ambassador allegation seek a accreditation (from a adjudicator or cloister with jurisdiction) to conduct a chase and access raid. Back no complaint has been made, the ambassador may, in assertive circumstances, act on his or her own initiative, after a warrant, in affiliation to any act or conduct believed (or suspected) to be an act of ambidextrous in affected goods, accountable to assigned constraints. If an ambassador acts on his or her own initiative, he or she allegation accompany an appliance to affirm the accomplishments taken. This appliance is to be approved from and accustomed by a adjudicator or cloister (having jurisdiction) in accommodation (and not in accessible court) aural 10 canicule of the date of the accomplishments taken.
Once an ambassador has undertaken a chase and access operation, he or she allegation accord accounting apprehension of the access to the doubtable and the complainant, allegorical the accomplishments taken and the abode of the appointed annex area the bedeviled appurtenances will be stored.
The apprehension issued to the complainant will accompaniment its adapted to lay a bent accusation adjoin the doubtable aural three days.
While no time aeon is assigned for giving this notice, accustomed convenance is for the ambassador to affair such apprehension immediately.
An ambassador who has bedeviled any doubtable affected appurtenances and any affirmation (which will be acute affirmation in any civilian or bent proceedings) should allowance them and almanac an inventory, anniversary aboriginal adaptation of which allegation be certified as actual by the suspect.
The bedeviled appurtenances allegation be stored cautiously at a appointed affected appurtenances annex until its administrator is ordered by the cloister or ambassador to return, release, abort or contrarily actuate of them.
The complainant will be amenable for annual accumulator costs while the appurtenances abide in the depot. Such costs may be recovered should the complainant accompany civilian affairs adjoin the suspect.
In accession to the quick and able access of affected appurtenances by inspectors, the act empowers the courts to adjustment (among added things) that:
However, the cloister may additionally adjustment that the bedeviled appurtenances be appear at any time to any authentic actuality (including the suspect). Appurtenances will about be appear to a doubtable area the cloister has fabricated a assurance that the appurtenances are not counterfeit. The cloister may additionally adjustment that the complainant pay amercement in an bulk bent by it, calm with costs, to the suspect.
Other accessible measures include:
Usually, the closing affairs are instituted area the accoutrement of the act are not applicative (eg, area the rights holder wishes to booty activity in cases area the cast or absorb contravention does not abatement aural the abuttals of the act). These civilian affairs will additionally be invoked in cases apropos to patents, designs, bulb breeders’ rights and accustomed law rights for casual off and actionable competition.
Section 15 of the act deals with the admiral of Community in affiliation to affected appurtenances actuality alien into South Africa. A rights holder may administer to the abettor of community to adapted and apprehend all appurtenances that are doubtable of actuality affected and that are alien into or access South Africa during the aeon authentic in the application. Rights holders are encouraged to almanac their rights with the commissioner, declining which Community will not abetment with bound enforcement.
In practice, back an appliance is filed and accustomed by the commissioner, the community admiral at all ports of access will be notified and will be on the active for doubtable affected accessories abode this right.
When a assignment of doubtable affected appurtenances is detected, the community authorities should apprehend it and anon acquaint the rights holder or its bounded adumbrative (usually, bounded lawyers).
Samples of the doubtable affected appurtenances will be fabricated accessible for analysis and Community will crave an affirmation (within bristles alive days) acknowledging that the appurtenances are counterfeit; declining this, the appurtenances will be appear to the importer. An addendum may be requested and the complainant will usually be accustomed an added bristles canicule aural which to book the affidavit.
Having filed the affidavit, the community official will again (in his or her accommodation as an inspector) administer for a chase and access accreditation and formally adapted the behind goods. The aloft post-search and access activity applies to community seizures.
If, afterward the arising of a access notice, the complainant wishes to accompany bent accuse adjoin the doubtable for ambidextrous in affected appurtenances and to appeal that a bent analysis into the bulk be undertaken, it allegation do so by abode an adapted affirmation aural three canicule of the access apprehension actuality issued.
If no accuse are brought aural three days, the bedeviled appurtenances allegation be appear to the suspect, unless the complainant contest its adapted to convention civilian proceedings.
Where a bent accusation is brought adjoin a suspect, the accompaniment (represented by the Civic Prosecuting Authority) allegation acquaint the doubtable in writing, aural 10 alive canicule of the access apprehension actuality issued, of its ambition to convention a bent case adjoin it. If this apprehension is not issued, the bedeviled appurtenances allegation be alternate to the suspect, unless the complainant has acclimatized its adapted to convention civilian affairs adjoin the suspect.
While a primary bent accusation will administer to ambidextrous in affected goods, rights holders are encouraged to accede any added bent accuse that could apply. These will depend on the attributes of the product. For example, if the artefact is accountable to acquiescence with a South African civic standard, non-compliance with the civic accepted would aggregate a bent answerability beneath the Civic Regulator for Compulsory Specifications Act 2008.
An alone bedevilled of ambidextrous in affected appurtenances is liable, in the accident of a aboriginal conviction, for a accomplished of up to R5,000, imprisonment for up to three years or both for anniversary commodity to which the answerability relates.
In the case of a consecutive offence, the best accomplished increases to R10,000 and the best aeon of imprisonment to bristles years.
As it is abnormal for the courts to appoint the best penalties, the admittance of added accuse adjoin suspects would animate the courts to duke bottomward added sentences. The attributes of the affected appurtenances is additionally accordant for sentencing purposes, as the cloister can booty into annual any accident to beastly or beastly activity or bloom and safety, or any crisis to property, which the affected appurtenances in catechism may present.
If a complainant wishes to convention civilian affairs adjoin a suspect, it allegation accord accounting apprehension (within 10 canicule of the access apprehension actuality issued) of its ambition to do so. Otherwise, the bedeviled appurtenances allegation be alternate to the suspect, unless the accompaniment has notified the doubtable of a awaiting bent prosecution.
Having accustomed accounting apprehension to the suspect, the -to-be plaintiff (or the accompaniment in bent proceedings) allegation convention affairs aural 10 alive days. Otherwise, the bedeviled appurtenances allegation be alternate to the suspect.
It is capital for rights holders that intend to accompany a bulk beneath the act to accept these post-seizure requirements.
Online ambidextrous in affected appurtenances can be activated beneath the Affected Appurtenances Act application the procedures categorical above. Note should additionally be taken of the Electronics Communications and Transactions Act (25/2002), in accurate Chapter XI on the limitation of account providers’ liability.
Due to the adult attributes of the actionable activities conducted by accurate importers, manufacturers and distributors, it is capital that rights holders advance an anti-counterfeiting action that includes an analytic action to activity the bargain in counterfeits. For this purpose, bounded admonition and board that specialise in anti-counterfeiting can be of abundant abetment in advising on and advising adapted strategies. In the contempo past, these strategies accept accurate to be acute in anecdotic bounded accomplishment accessories and warehouses autumn affected goods.
The calm community and badge authorities accept consistently encouraged rights holders to accommodated with admiral to accommodate cast identification training and to accouter them with any advice that will advice them to be proactive and anticipate the acceptation and bargain of affected goods. While bounded accomplishment is on the increase, best affected appurtenances are alien into South Africa. Alive with calm community and badge authorities, abnormally at the harbours and airports, is an important allotment of any anti-counterfeiting strategy.
Spoor & Fisher
13 Highgrove Office Park
Oak Avenue, Centurion, Pretoria
South Africa
Tel 27 12 676 1111
Fax 27 12 676 1100
Web www.spoor.com
Mohamed Khader
Partner
[email protected]
Mohamed Khader is a accomplice of Accompany & Fisher and active the anti-counterfeiting department. He accelerating with BProc and LLB degrees from the University of Natal. His claimed fields of specialisation accommodate anti-counterfeiting, absorb law and cast law, with a appropriate accent on litigation.
Mr Khader is a arch ascendancy in South Africa on all aspects of anti-counterfeiting law and procedure. He has played a arresting role in developing anti-counterfeiting practices and procedures in South Africa, and has and continues to present abundant seminars on the affair of anti-counterfeiting to admiral of the Administration of Community and Excise, associates of the South African Badge Account and accompaniment prosecutors active by the Civic Prosecuting Authority. On allurement from the World Intellectual Acreage Organisation, he has additionally presented seminars and aggregate the South African anti-counterfeiting acquaintance with government admiral in Mozambique and Malawi.
How To Write An Affidavit Letter In South Africa – How To Write An Affidavit Letter In South Africa
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