SOUTH AFRICA Law and Practice Contributed by: Roberto Barreiro, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
by any fair dealing of a literary or musical or artis - tic work for the purposes of: • research or private study or the personal or private use of a person; • criticism or reviewing work; • reporting current events (eg, newspapers, magazines, or broadcasting). However, there must be acknowledgement of the work by the source being mentioned or the name of the author of the work. The Copyright Act 98 of 1978 does not allow for a defence of satire or parody to copyright infringement. The Copyright Act 98 of 1978 does not explicitly outline an exception for freedom of expression or speech. 9.3 Exhaustion In South Africa, the doctrine of exhaustion of trade mark rights applies to goods that are first sold and resold within the country. In other words, the proprietor has little control over the further distribution of the goods once they have consented to the selling of the goods on the market. In South Africa, the exhaustion of copyright applies when a genuine article of work is sold and subsequently resold in the country. As per the foregoing explanation, a genuine article must be sold then resold for this principle to be appli - cable. 10. Remedies 10.1 Injunctive Remedies Injunctive relief for a trade mark owner includes:
• interdicting and restraining the offending party from using the owner’s trade marks; • ordering the delivery up for destruction of the offending goods; and • obtaining an inquiry into damage. Injunctive relief for a copyright owner includes damages, an interdict, and the delivery of infring - ing materials. In South Africa, judges have discretion on whether to grant the relief/remedies being requested by the litigants and to provide their reasons thereto. Injunctive relief will be granted when the court has satisfied itself that the party seeking relief has sufficiently pleaded their case and provided the court with relevant evidence thereto, regardless of the defences the other party may have raised to the claim. The court will take the following factors into account: juris - diction, locus standi (ie, whether the plaintiff can bring the case in their own name), factual posi - tion, and evidence. A trade mark owner needs to establish propri - etorship over the mark and this can be done by way of furnishing a trade mark certificate or by providing evidence that will prove proprietor - ship (in the case of unregistered rights). Evi - dence must be provided to prove that their rights have been infringed by the defendant and that the infringement has caused or will likely cause harm to their business through confusion in the market. In relation to copyright, the plaintiff must prove that they are the owner of the work, that it was reduced to material form, that it is original, and that they are resident of a convention coun - try. In addition, the plaintiff must be able to show that their protected work was the source from which the offending work was derived and that the offending work was done without consent.
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