Monday 28 September 2015

Afro Leo

Significant damages awarded in software infringement case in RSA

It's not often that we get a case involving copyright enforcement in the software space especially against a government department, by a local software developer and where significant damages are awarded. In the recent case of Quill v Randfontein Local Municipality (RLM), local software developer (Quill) sued RLM for copyright infringement in respect of their BIQ software product and in the process obtained over R10million (-+$1million) in damages (a large amount by RSA standards).

Five key points to be canvassed shortly by Nic Rosslee in this week's #SandtonDiscussion at 9am CAT are:

  • the nature of copyright in software in South Africa as a separate category of work
  • the inadequacy of RLM's defenses
  • benefits of using trial proceedings under these circumstances
  • the court's interpretation of a reasonable royalty
  • the refusal to grant leave to appeal 
The timing of this case is apt in that it endorses the need for education (even within government departments) about the need to pay attention to software licenses. A recent post on the work of Amanda Lotheringen (DTI) and the Billa Coetsee (BSA) whose teams have launched a world first compliance campaign explains more about that here.

Hosted by Adams & Adams.
Tune in at 9am for more. 
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Monday 21 September 2015

Afro Leo

The intimate question of class 25/3 similarity up next in #SandtonDiscussion

Can you concentrate?
fashionmg-style.com
This week on #SandtonDiscussion, the group takes a look at the case of Chantelle v Designer Group (Pty) Ltd. This judgment was handed down in the North Gauteng High Court on 24 April 2015.

It is an appeal against the dismissal by the Registrar of Trade Marks of the Chantelle’s opposition to the registration of the trade mark CHANTELLE which has applied for in class 3 (cosmetics etc) by the South Africa company Designer Group. Chantelle is a French company which has registered the trade mark CHANTELLE in South Africa covering items of fashion, in particular, intimate apparel, underclothing and swim suits in class 25. The key question is whether these goods in class 25 are similar to those in class 3 such there exists a likelihood of confusion. 

RSA already has a similar decision in South Africa (Danco Clothing) based on previous legislation where it was decided that a likelihood of confusion would exist where identical marks covered goods in class 3 and 25 generally. This is contrary to the Registry decision. To find out what the High Court has to say, log on to your twitter accounts at 9am CAT.

The discussion will be led by @maureenthuto at 09h00 CAT.
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Monday 14 September 2015

Afro Leo

Anas exposes Ghana corruption scandal in judiciary

Anas, the acclaimed Ghanaian investigative journalist has exposed a corruption scandal that threatens to undermine one of Africa's cinderellas. Ghana, ranked in the top 5 least corrupt countries in Africa by the Corruption Perceptions Index in 2012, is now the subject of headline news of the BBC which reported a few days ago that:
"A group of Ghanaian judges allegedly caught on camera asking for bribes has filed a legal challenge to their suspension.
Of the 22 suspended lower court judges, 14 have filed a writ to the high court, saying the judicial council's investigations have no basis in law.
Investigative journalist Anas Aremeyaw Anas conducted a two-year undercover investigation into the judges.
It is the biggest scandal in the history of Ghana's judiciary." Full article here.
AllAfrica took up the story and leads with the following:
"It may go down in history as the single most massive bribery scandal to hit Ghana's Judiciary, as 180 officials of the Judicial Service have been caught on camera taking bribes and extorting money from litigants."
More about that here.
Afro Leo commends Anas for his work which, unfortunately, will not provide much comfort for investors in Africa, especially those that put their IP at risk through distribution, licensing, JV and other collaborations. A typical example of a distributor gone rogue in South Africa was discussed today in #SandtonDiscussion.
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Afro Leo

Passing off, domain and company name objection and cancellation in #SandtonDiscussion today

Afro-IP's coverage of the #SandtonDiscussion continues today when the group considers the case of Global Vitality Inc v Enzyme Process Africa (Pty) Ltd. This judgement was handed down in the Western Cape High Court last month (21 August 2015). 

The applicant is Global Vitality Incorporated (an American manufacturer, distributor and seller of dietary nutritional supplements) against Enzyme Process Africa (Pty) Limited (the former exclusive distributor of Global Vitality of goods bearing the mark ENZYME PROCESS) in South Africa. Global Vitality sought to interdict/injunct Enzyme Process Africa from using the mark ENZYME PROCESS as a trade mark, company name and domain name, as well as to cancel certain trade marks held by them. The discussion will be lead by @EricMashida at 9:00 am CAT.

You can follow these and other discussions hosted at the Adams & Adams office based in Sandton using the twitter handle #SandtonDiscussion. If you are interested in joining via Skype please email Afro-IP here and we will see if we can hook you up.
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Sunday 13 September 2015

Jeremy

Kenya to copy DMCA, block hosts of infringing sites?

Via Infojustice comes "Upcoming Kenyan Copyright Amendments to Target Local Internet Service Providers Hosting Infringing Content", which tells us the following:
The Kenya Copyright Board (KEBCO) is preparing to propose amendments to the Copyright Act that would block sites hosting content which infringes local creators’ copyrights. Local internet service providers that refuse to take down content would face fines and even prison sentences. KEBCO’s webpage notes that the new rules should “come into play by the end of the year… The laws will be ready for public discussions next month before they go to Parliament.” Head of the Kenya Copyright Board (Kecobo) Edward Sigei told the Standard:
“We are proposing to introduce an amendment in the Copyright Act that will place the onus of responsibility for Kenyan content illegally downloaded, squarely on local internet service providers … We are borrowing from the Digital Millennium Copyright Act of America and others that have come after it and we have designed an amendment where the ISP will be liable under certain circumstances for infringements that happen through their channels.”
This is part of a larger effort to promote the local TV and movie industry. The government is also working with broadcasters to increase the coverage of local content.
This blogger, apart from being curious as to why the Kenya Copyright Board is both "KEBCO" and "Keboco", wonders how long it will take to get this law -- assuming that it will be passed -- up and running, and how effective it will be.  He hopes to hear from his Kenyan friends as to their hopes, expectations and analysis of the provision and its likely efficacy.

Thanks to Chris Torrero for this link.
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Tuesday 8 September 2015

Jeremy

Tunisia's new trade mark law has suddenly become more accessible

Afro Leo learns from the World Intellectual Property Organization's WIPO Lex News that the text of Tunisia's Decree No. 2015-303 of 1 June 2015, establishing the Procedures for the Registration of and Opposition to the Registration of Trade Marks and Service Marks, as well as the Procedures concerning Recording in the National Register of Marks, has now been added to WIPO's online database of national IP laws. This Decree, which came into force on 9 June 2015 and repealed Decree No. 2001-1603 of 11 July 2001, introduced the following amendments to Tunisia's trade mark law:
(i) introduction of electronic filing of applications for the registration of trade marks;  
(ii) setting out of provisions governing the trade mark registration through the Madrid Protocol; 
(iii) extension during the opposition period of the time for the applicant to submit observations from 45 days to 2 months from the date of notification of the opposition; 
(iv) fixation of a maximum period of 8 months from the date of submission of observations for the applicant and the opponent to attempt conciliation in the trade mark opposition; 
(v) extension to 2 months from 1 month of the period during which the opponent may furnish proof of the use of the trade marks upon which opposition has been based and 
(vi) definition of a period of 2 months for the applicant to submit the missing documents to request recording of a change of names, addresses, ownership, assignment, etc., in the National Register of Marks.
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Monday 7 September 2015

Afro Leo

PM cancellation case subject of #SandtonDiscussion at 9am CAT


The twitter series hosted by Adams & Adams continues with a discussion on this case involving a spat with Philip Morris and Westminster Tobacco Products over the PARLIAMENT trade mark in South Africa which had been registered since 1952. PM sought to cancel two trade marks on grounds of non use. Tune in to find out if they succeeded. Lawyers working on the case are newly branded Kisch IP (representing PM) and Spoor & Fisher (representing Westminster).

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Thursday 3 September 2015

Afro Leo

Draft Cybercrimes and Cybersecurity Bill published for comment in RSA


The Department of Justice and Constitutional Development invites the public to comment on the draft Cybercrimes and Cybersecurity Bill. A discussion document on the bill is contained here.
According to The Department of Justice and Constitutional Development, "it is estimated that cyber-related offences are escalating and currently exceed a value in excess of R1 Billion annually". Afro Leo is not sure how they reached this figure but suspects that it is far greater than that because:
  • Most of the value within a business (never mind personal assets) is attributable to intangible assets (see BrandFinance article here, for example). 
  • It is these assets that are most at risk of a cyber-attack (eg theft of know-how and related copyright - Ashley Madison is an example of this type of damage). 
  • The value of RSA annual GDP is roughly R350 billion, representing the total value of goods and services produced in RSA over a year. 
  • R1 billion is only but a small fraction of that, and the risk of cybercrime is very real indeed

As a consequence, the threat from cybercrime represented in monetary terms appears to be far greater. However, according to a report from the BSA published a few years ago (The Software Alliance reported on by the blog here) "South Africa has useful laws in place for cybercrime and electronic commerce". In that report the antiquated state of copyright legislation was cited as a major impediment on the scorecard. Nevertheless, updating opr consolidating legislation on cybercrime is important. So how does the Bill stand up - that is what the legislature want to know.
The draft Bill focuses on:
  • Creating offences and prescribing penalties related to cybercrime.
  • Regulating jurisdiction, as well as the powers to investigate search and gain access to or seize items in relation to cybercrimes.
  • Regulating aspects of evidence, relative to cybecrimes.
  • Regulating aspects of international cooperation in respect to investigations of cybercrimes.
  • The establishment of various structures to deal with cybersecurity.
  • The identification and declaration of National Critical Information Infrastructures and measures to protect these infrastructures.
  • Creating obligations for electronic communications service providers regarding issues that impact on cybersecurity.
Interested parties wishing to comment on the Bill are invited to submit written comments to the Department of Justice and Constitutional Development on or before 30 November 2015. These can be submitted to: cybercrimesbill@justice.gov.za. Submissions can also be faxed to: (012) 406 4632. For information or queries related to submissions, contact Mr S J Robbertse on: (012) 406 4770.

Reinhardt Biermann will also be covering this topic in today's #SandtonDiscussion at 9am CAT.
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