"Patentees under threat like rhinoceroses"

Posted on March 15, 2013

Former Supreme Court of Appeal Deputy President, Judge Louis Harms, an extraordinary professor in the Department of Private Law and the incumbent of the Adams and Adams Chair in Intellectual Property, presented the second prestige lecture of the Faculty of Law this year at the Senate Hall, University of Pretoria, on 13 March 2013.  The Prestige Lecture Series of the Faculty of Law is a key highlight on the Faculty's events calendar and was initiated during 2008 when the University of Pretoria celebrated its centenary.   Judge Harms addressed the issue of the compulsory use of plain packaging for tobacco products as contemplated in the World Health Organisation Framework Convention on Tobacco Control.  The Guidelines issued by the WHO provide that countries “should consider adopting measures to restrict or prohibit the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style.”  The Guidelines add that the effect of advertising or promotion on packaging can be eliminated by requiring plain packaging which displays no branding other than a brand name, a product name and/or manufacturer’s name, but no logos.   Judge Harms emphasised that although trade marks are intangible property, there is no constitutional right to a trade mark. The rights arise through registration and like all rights, a trade mark right is not absolute but relative, and may be trumped by other rights.  A registered trade mark provides a right to prevent others from using the same or a confusingly similar trade mark for the same or similar goods or services. Its ownership gives a preferential right to use to the owner but not an absolute right to use the mark on the particular goods for which it is registered.   As Australia was the first country to introduce plain packaging for tobacco products, Judge Harms discussed the Australian model, as well as the constitutional challenge and judgement in the High Court of Australia which found the imposition of plain packaging did not infringe on any constitutionally guaranteed right.   Judge Harms warned, however, that the imposition of plain packaging could have unintended consequences and play into the hands of organised crime as it would make counterfeiting much easier since there would be little incentive and scope for protection of trade marks in the tobacco industry.  
Click to download Prof Harms' presentation.  

Prof Louis Harms

Fltr:  Prof Steve Cornelius (Director of the IP Centre), Prof Trynie Boezaart (Head of the Department of Private Law),
Prof Louis Harms and Prof André Boraine (Dean of the Faculty of Law)

Prof Louis Harms

Prof Steve Cornelius, Director of the Centre for Intellectual Property Law

Fltr:  Prof Esmé du Plessis (Senior Consultant, Adams & Adams), Prof Chris Nagel
(Acting Head of the Department of Mercantile Law) and Prof Louis Harms

Prof Trynie Boezaart (Head of the Department of Private Law)

Published by Erhardt Maritz

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