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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:TRIPS and civil remedies for trade mark infringement: does English and South African national legislation comply with international standards?
Author:Kelbrick, RoshanaISNI
Periodical:South African Yearbook of International Law
Geographic term:South Africa
TRIPS Agreement
Abstract:The General Agreement on Tariffs and Trade (GATT), which was signed in April 1994, includes an annexure on trade-related aspects of intellectual property (TRIPS). Part III of TRIPS deals with the enforcement of intellectual property rights and consists of a section on general obligations, followed by sections on particular civil, criminal and administrative remedies. These remedies are minimum requirements for the protection of all forms of intellectual property. Member States are expected to ensure that their domestic legislation complies with at least the minimum requirements. The present article is limited to those civil remedies for which specific provision is made in the South African Trade Marks Act of 1993 and the English Trade Marks Act of 1994. Each TRIPS requirement is stated and possible interpretations and problems are considered. The corresponding English and South African provisions are then set out and any divergence from the TRIPS provisions identified. The author shows that South Africa's legislation and court practice do not accord completely with the TRIPS requirements. But since very few of the changes necessary to bring South African trade mark legislation entirely into line with the requirements of TRIPS are constitutionally acceptable, they cannot be implemented. Notes, ref.