SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
amendment to the registrar in addition to the details of the amendment. Advertisement of the amendment will occur, with specifications open to public inspection. If an opposition to the amendment is lodged, the commissioner will determine the matter; otherwise, if no objection is lodged or if advertisement was not applicable, the registrar may affect the amendment. • Registered designs: Amendment through the correction of clerical errors in any docu- ment may be authorised by the registrar, with or without a request. If requested, the request must be in writing; if not requested, the registrar shall give notice to the owner of the registered design. If the registrar is of the opinion that the correction will materially alter the scope of the design, the registrar may require notice of the request to be published in the patent journal. If no opposition to the amendment occurs, or if notice was not pub- lished, the registrar may decide the matter. If opposition occurs, the courts may decide the matter. • With regard to the amendment of the applica- tion, design or registration, the owner may at any time apply for the amendment with a prescribed fee. The application for amend- ment must provide the full reasons therefor, whereupon the application will be advertised in the patent journal. If there is no opposi- tion to the amendment within the prescribed time, the registrar may determine the matter; if there is opposition, the court may determine the matter. No amendment will be accepted if it will introduce new matter or matter not in substance disclosed beforehand. It will also not be accepted if it introduced matter not fairly based on that disclosed beforehand. • Plant breeders’ rights: The amendment of an application for a registered plant variety is possible through an application to the regis-
trar. If it is made before the original applica- tion’s publication in the government gazette, there are no requirements to meet in order to amend the application. If it occurs after the publication, the registrar shall republish the application in amended form. • The amendment of clerical errors or correc- tions to any document post-registration, or to any procedure in any proceedings (if not detrimental to any person), is possible upon written request. The registrar may also make such amendment mero motu with notice to the owner. Applicable actions available to the holder of an intellectual property right generally include negotiation, mediation, arbitration (such as through the Intellectual Property Arbitration Cen- tre, South Africa) and approaching the court for relief or Anton Piller-type orders. Certain actions unique to the different intellectual property rights are detailed in the following: • patents – infringement proceedings in court are always initiated in the Court of the Com - missioner of Patents, located in Pretoria; • designs – all other matters dealing with the infringement are initiated in the High Court that has jurisdiction; 2. Initiating a Lawsuit 2.1 Actions Available Against Infringement • copyright – in addition to infringement and criminal proceedings, the Copyright Tribunal hears licencing and royalty disputes; and • plant breeders’ rights – in addition to infringe- ment proceedings in the High Court, the PBR Act, Section 24A provides for the issuing of a warrant to search, sample and seize material,
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