Category Archives: Trade Mark

The Trademark Clearing House

TMWhite-01

By Vicky Stilwell

The Trademark Clearing House (TMCH) is a centralised repository service for the validation and protection of trade marks. The TMCH is operated by ICANN, which is in the process of launching some 1900 new generic top level domains (gTLD’s). The gTLD’s that have been launched to date include .world, .business, .network, .software, .auction, .property and .investments, to name a few. A bank, for example, may want to register its trade mark under the gTLD .bank. There may also be several additional relevant gTLD’s, such as .finance and .loan.
The TMCH provides a unique central process for the validation of trade marks for strategic defensive purposes. The main advantage is that it affords trade mark owners, who have validated their trade marks with the TMCH, the opportunity to register domain names, matching their trade marks, within the “sunrise period” following the launch of each new gTLD, before such domain names are made available for registration by the general public. In addition, if a trade mark owner has validated his trade mark with the TMCH he will be notified of the launch dates of all new gTLD’s as such launch dates are announced by ICANN.

The TMCH also notifies the owners of validated trade marks if any third party registers, or attempts to register, a domain name matching their validated trade mark. This is of great assistance to trade mark owners in preventing so-called “cybersquatting”.
A trade mark owner that wishes to enforce his rights and take action in respect of a domain name that has been registered by a third party may file a complaint in terms of ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) and rules or its Uniform Rapid Suspension System (URS) rules, the latter of which is a lower cost, faster path to relief which can be used by trade mark owners in the most clear-cut cases of infringement.
A large number of new gTLD’s have already been launched, and there are many still to come. It is therefore important for brand holders to validate their trade marks with the TMCH as soon as possible to enable them to enforce their trade mark rights and to register domain names with extensions that are relevant to their businesses during the sunrise periods of the relevant gTLD’s. The TMCH validation process allows for the validation of trade marks for a 1, 3 or 5 year period.

In the event that you require any further information regarding validation of trade marks with the TMCH, the new gTLD’s that have, or are still to be, launched, or the domain name dispute resolution process, please contact Vicky Stilwell at vickys@dmkisch.com or Robin Richardson at robinr@dmkisch.com.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Registering trade marks in Africa: ARIPO

Africa, albeit a developing continent, offers many opportunities for investment and new business and, along with new investment, goes the need for the registration of trade marks.  Africa is, however, a big continent with over fifty recognised states, so where should a company start when registering trade marks?

When planning to do business in more than one African state, it may not be necessary to have more than one registration.  Firstly, there is the African Intellectual Property Organisation (OAPI or AIPO) where one registration covers Benin, Burkina Faso, Cameroon, the Central African Republic, Chad, Comoro Islands, Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritania, Niger, Senegal and Togo.  Secondly, there is the African Regional Intellectual Property Organisation (ARIPO), a trade mark application system of which not a lot of use is currently made.

ARIPO was established in terms of the Agreement on the Creation of the African Regional Intellectual Property Organisation, known as the Lusaka Agreement.  The Lusaka Agreement was adopted in Lusaka, Zambia, on 9 December 1976.  ARIPO was established to pool the intellectual property resources of its member countries and to avoid the duplication of financial and human resources.  In terms of the preamble to the Lusaka Agreement, the member states have recognised that there are advantages to be derived from the “effective and continuous exchange of information and the harmonisation and co-ordination of their laws, policies and activities in intellectual property matters”.

ARIPO’s objectives are to promote the harmonisation and development of intellectual property laws and to establish common services necessary for the co-ordination, harmonisation and development of intellectual property activities affecting its members.  In line with these objectives, the Banjul Protocol on Marks was adopted on 19 November 1993.

The Banjul Protocol provides for the registration of trade marks by ARIPO on behalf of its member states.  The applicant can choose which of ARIPO’s member states to designate in the application.  Registration of a trade mark by ARIPO has the same effect as if the trade mark was filed and registered under the national law of each designated state.  One registration can in theory accordingly cover several territories.

ARIPO has 19 member states but only 9 countries have acceded to the Banjul Protocol.  An applicant therefore has a choice of nine countries which it can designate in its application for registration.  These countries are Botswana, Namibia, Uganda, Lesotho, Liberia, Swaziland, Zimbabwe, Malawi and Tanzania (Tanganyika).  If a member state subsequently accedes to the Banjul Protocol, the Protocol provides that a registrant or applicant has the right to designate that state.

One ARIPO registration can in theory accordingly cover several territories.  In practice, however, only Botswana, Zimbabwe, Liberia and Namibia have national legislation which recognises ARIPO trade mark applications.  In the 2006 case of Anglo Fabrics (Bolton) Ltd and Another v African Queen Ltd and Another (HCT-00-CC-CS-0632-2006) the High Court of Uganda inferred that it would recognise trade marks registered under international protocols like the Banjul Protocol, to which Uganda is a member state, as long as Uganda was a designated country for purposes of registration.

ARIPO registrations are accordingly recognised in Botswana, Zimbabwe, Liberia, Namibia and, it appears, Uganda but that leaves several states which do not have national legislation which recognises ARIPO trade mark applications.  These states are at various stages of drafting and implementing the required legislation.  Although a company can designate nine countries in an ARIPO application, therefore, the registration may only be enforceable in five countries.

Given that there are so few member states in which rights flowing from ARIPO registrations can be enforced, is an ARIPO registration worthwhile?  The answer to that question depends on whether a company wants to take the risk that the remaining member states will eventually accede to the Banjul Protocol and/or implement national legislation recognising ARIPO trade marks.

If all ARIPO’s member states acceded to the Banjul Protocol and implemented national legislation recognising ARIPO trade marks, the ARIPO system would be the first port of call when considering registering trade marks in Africa.

For more information, please contact:

MYRA CRAVEN
Attorney
Department: Trade Mark
Tel: +27 11 324 3119
Email: myrac@dmkisch.com

Author: Myra Craven

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Africa: First to file v first to use

DMK-a3bOne of a business’s most valuable assets is its brand and, therefore, its trade mark.  A business invests in its brand every time it does any advertising or promotion and the last thing that anyone wants is another business popping up and selling inferior goods or services under the same brand.  Unfortunately this is, however, something that regularly happens in Africa where hundreds of different languages are spoken and not everyone can read the labels.

Numerous countries in Africa do not have anti-counterfeiting legislation or other measures in place to prevent consumers from being taken advantage of.  Even where such legislation is in place, it is not always effectively policed.  Therefore, whereas one would have more than one basis on which to take on infringers in developed countries, in a lot of African countries a business can only rely on its trade mark.  Litigating in Africa is also extremely expensive and, given substantial backlogs and unavoidable postponements or interim applications, the process can be lengthy.

The strength of a company’s case against infringers depends on the law in each African country.  In some countries common law rights (for example rights acquired through use) are not recognized and the law does not provide for rights to a trade mark to arise otherwise than by registration.  In such countries, the first entity to file an application for registration of a mark will have the rights thereto, regardless of whether another entity has built up a reputation in the mark in that country.  This is known as the ‘first to file’ rule.  Countries in which the ‘first to file’ rule applies include Angola, Nigeria and the Democratic Republic of Congo.

The ‘first to file’ rule also applies to the Organisation Africaine de la Propriété Intellectuelle (OAPI or AIPO) system, unless the applicant is acting in bad faith and should have known that another person had a prior right to use the mark.  OAPI is a union of predominantly French-speaking countries which established common intellectual property laws and a single Intellectual Property Office, situated at Yaoundé, Cameroon.  Its members are Benin, Burkina Faso, Cameroon, Comoros, the Republic of Congo, Côte d’Ivoire, Gabon, Guinea, Guinea-Bissau, Equatorial Guinea, Mali, Mauritania, Niger, Central Africa Republic, Senegal, Chad and Togo.  It is not possible to register trade marks in these individual countries but an OAPI registration covers all of the member countries.

In other countries, common law rights are recognised and prior use in a country may entitle an entity to institute infringement proceedings.  Such countries include Tanzania, Ethiopia, Uganda, Rwanda and Burundi.  A business would, in other words, be able to use common law rights (for example use or reputation) as a basis upon which to oppose an application for registration or to institute infringement proceedings.  Whether or not it would be successful would depend on whether it can prove that it has prior rights.

A number of countries also recognise well known marks, for example Rwanda, Tanzania, Zanzibar and Ethiopia.  This means that, in these countries, a business could argue that, even though it has not registered its mark, its mark is well known and entitled to protection.  Making out a case that a mark is well known in a country is generally an onerous burden as it does not suffice to show that the mark is well known internationally.  The business would have to show that the mark is known to the citizens of the specific country.

While, as a rule, it is recommended that one applies for registration of one’s trade mark in any country in which one intends to trade, it is even more important to do so if one intends to trade in a first to file country.  Not doing so may leave one without a remedy if a third party decides to register the trade mark there first.  Even where one intends to trade in a country which is not a first to file country, having a registered trade mark means the trade mark owner need not prove use or reputation – thereby cutting down on litigation costs.

For help in deciding where you should register your trade mark, contact:

MYRA CRAVEN
Attorney
Department: Trade Mark
Tel: +27 11 324 3119
Email: myrac@dmkisch.com

Author: Myra Craven

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

What’s your classification?

DMK-a4bWhen determining trade mark rights, the classification system is of utmost importance. This system determines the scope of one’s statutory trade mark rights since trade mark infringement can only take place in respect of the goods or services that have been specified in the particular class, or in respect of related goods or services. Where a person registers a trade mark in respect of a certain class of goods or services, it would not be justifiable if such rights extended to other dissimilar classes of goods or services, which would result in granting that person a monopoly over goods or services that he or she is not necessarily trading in.

In the case of Impala Platinum Holdings Limited v Impala Warehousing and Logistics Africa (Proprietary) Limited and Others, the Court had to determine whether Impala Warehousing and Logistics Africa (Proprietary) Limited (“IW”) was infringing and passing off Impala Platinum Holdings Limited’s (“Implats”) registered trade marks.

Implats trades in the field of mining goods and had registered its “IMPALA” trade mark in classes 1, 6, 14, 36, 40 and 42. IW trades in warehousing and logistics services and was, in fact, involved in the transportation of mining goods in which Implats trades. Implats, however, had failed to register its “IMPALA” trade mark in class 39 in respect of transport and logistics services. Nevertheless, Impats instituted trade mark infringement and passing off proceedings against IW and IW countered with partial expungment (trade mark cancellation) proceedings against Implat’s “IMPALA” trade marks on the basis of non-use.

The evidence led by the parties in this case showed that Implats actually used the name “IMPLATS” instead of “IMPALA” in all of its communications, on its website and in the email addresses of employees and that the mark “IMPALA” was used together with the descriptor “PLATINUM”. On the other hand, IW used other descriptors such as “WHAREHOUSING & LOGISTICS” and “AFRICA” together with the “IMPALA” mark so as to distinguish itself from Implats.

When determining whether trade mark infringement or passing off has occurred, the court must establish whether there exists a likelihood of deception or confusion arising in the market place if both parties were to use the same or similar trade mark. Our courts have previously found that, where trade marks with a greater degree of resemblance are used in respect of goods or services with a lesser degree of similarity, the likelihood of deception or confusion arising is minimised. Where identical marks are used in relation to the completely different goods or services, it is likely that this will not constitute trade mark infringement.

In this particular case, Implats had failed to register its “IMPALA” trade mark in respect of the services offered by IW under its “IMPALA” mark. Our courts have also previously found that the fact that a party has chosen not to register its trade mark in a particular class is telling. If Implats had intended to use and protect the mark in respect of transport and logistical services, it should have registered its “IMPALA” trade mark in that class, namely class 39.

Another significant aspect of this particular case is that the evidence of use led by Implats was not clearly explained, particularly in respect of how and in what manner it used the “IMPALA” trade mark and the distinction between its use of the registered “IMPALA” trade mark and the “IMPLATS” mark. Implats further failed to deal, in detail, with a comparison of the parties use of the “IMPALA” marks, a comparison of the target market (notional users/purchasers), the nature of the respective goods and services and a comparison of their respective trade channels, so as to demonstrate the alleged possibility of confusion or deception. Instead, it simply made a general allegation in its founding papers and failed to expand thereon. As has been previously held in our case law, in particular the popular Plascon-Evans case, evidence in motion proceedings is led by way of affidavits. These affidavits therefore constitute both the pleadings and the evidence and so it is imperative that they are clear. Neither the court nor the other party should have to speculate on the relevance of certain facts contained in such affidavits.

In the end, the Court found that the essence of the parties’ respective goods and services were different, thereby minimising the likelihood of deception or confusion, and that Implats had failed to show evidence of use of its “IMPALA” trade marks beyond the sphere of mining and selling platinum related products. The Court therefore dismissed Implat’s main applications and allowed IW’s counter application for expungement and partial expungement of Implat’s trade marks, so as to limit the scope of Implat’s trade mark rights to the field of mining and selling platinum related products only.

There is no doubt from our South African case law that trade mark proprietors may have difficulty in proving trade mark infringement or passing off in relation to particular goods or services where it has not in fact registered or used its trade mark in relation to those particular goods or services. Trade mark proprietors should therefore ensure that they are sufficiently protected by registering their trade marks in all of the classes of goods or services in which they trade. Finally, our courts have made it clear that, when determining which classes of goods or services one wishes to protect its trade mark in, using a wide specification that includes goods or services that are not used or intended to be used should be avoided. Trade marks with specifications which are too vague or which are simply indefinite may be vulnerable to expungement or rectification proceedings.

For more information, please contact:

TAMMI WIRTZ
Candidate Attorney
Department: Trade Mark
Tel: +27 11 324 3089
Email: tammiw@dmkisch.com

Author: Tammi Wirtz

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Managing your Intellectual Property: Why Trade Marks should always be on the Board Meeting Agenda

DMK-a1BOne of the most valuable assets in any business is its Intellectual Property but it is often the most neglected. Intellectual Property manifests itself in various forms from trade marks, copyrights, patents, design and domain names, through to licenses, franchises, exclusive distributorship rights and know how and technology. In order to maximise the value of a company’s intellectual property, it needs to be well managed and regularly audited. A formal intellectual property policy should be in place to ensure there are the procedures to protect, enforce and maintain intellectual property effectively. This article provides an overview of managing trade marks within an organization.

The Trade Mark Portfolio

A trade mark portfolio is made up of registered trade marks and unregistered trade marks in use. Trade mark rights may also be derived from licenses, franchises, co-branding and other contracts. Managing these rights is equally important as managing company owned assets.

Additionally, domain names should form an integral part of trade mark management, as a domain name will often incorporate word marks or trade names associated with a business. Domain names can afford a company an exclusive advantage in the online space. By incorporating trade marks in domain names associated with a business, the company can reach consumers and grow its reputation and goodwill in cyberspace.

How to manage your Trade Mark Portfolio

Underpinning a good management system is an Intellectual Property or Trade Mark Management Policy. This should identify who within the organization is responsible for and authorized to develop new trade marks and the proper procedures to follow when new brand names are developed, or existing brands updated. You may want to engage your Trade Mark attorneys to assist in the drafting of the policy.

Generally, the party that files first will have will have priority over a later Applicant so timing is key. Trade marks are also territorial rights, so due consideration must be given to where you plan to use the mark and ensuring its availability. Advanced consideration of important jurisdictions to obtain upfront protection is a good strategy, instead of trying to obtain protection after a product launch.

Trade marks also need to be renewed every 10 years. In conducting an annual audit, marks due for renewal can be identified. Updating of logo trade marks to reflect current usage is important as this may impact on your ability to enforce rights. A minor change may only require the trade mark to be amended whilst a completely updated look will usually means that the mark needs to be re-filed. Trade marks which are not in use may become vulnerable to cancellation, and by conducting annual audits, these risk areas can be effectively identified and managed.

Protecting your assets

Whilst protecting your trade mark rights commences with securing protection, it is equally important to enforce these rights against infringers and counterfeiters. Steps to be taken in achieving effective enforcement of trade mark rights include, monitoring competitor activities, market place surveillance, monitoring trade mark gazettes, journals and company name registrations. When conflicting trade marks are encountered, a proactive strategy should be adopted to address the offending party. It is also important to monitor the internet to check for online trade mark infringement or cyber squatting.

As part of the auditing process, a company should also ensure its trade marks are used properly, and not allowed to become generic. Examples of trade marks that have been become generic due to the manner in which they were used include escalator, aspirin, catseye, thermos and trampoline to name but a few. An internal guideline on trade mark usage through a corporate identity or brand identity manual is recommended. Registered trade marks should always be marked with a symbol whilst unregistered trade marks can be denoted by the use of the ™ symbol. Marking and labelling requirements may vary from country to country so due consideration should be given to this if locally manufactured and packaged goods are to be exported. If you encounter any generic or improper usage of your trade marks, it is recommended to nip this in the bud by taking appropriate action and monitoring the market to ensure this does not continue.

To conclude, part of good corporate governance and the duties of directors is to ensure company assets are protected and maintained – does your company tick this box when it comes to its intellectual property?

For more information please contact:

Nola BondNOLA BOND
Head of Trade Mark Department and Director
Department: Trade Mark
Tel: +27 11 324 3000
Email: nolab@dmkisch.com

Author: Nola Bond

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

“There is more to that tune stuck in your head.”

A device, a name, a signature, a word, a letter, a numeral, a shape, a configuration, a pattern, an ornament, a colour, a container for goods or any combination of the aforementioned, are all trade marks, capable of being represented graphically, used or proposed to be used in relation to one trader’s goods or services for the purpose of distinguishing them from similar goods or services of another.

When we think of trade mark, we tend to only think of words and logos. What if we started thinking outside the box and beyond what one can see? What about what we hear or even smell on a daily basis? Have you ever thought of that? Have you ever thought of that tune stuck in your head and whether there was more to it than just a tune?

Most people find it easier to remember a melody, jingle or even song as opposed to words that are sometimes complicated to pronounce or misspelled or in another language solely to make it sound romantic and different.
Trade marks are important in our society not only for consumers but also trade mark owners. They enable us not only to identify a product/service from another but also to protect us from being misled into buying the wrong product and finally they protect trade mark owners against injury to their reputation, against dilution and any form of unlawful infringements.

In terms of our law, a mark needs to be capable of being represented graphically as well as capable of distinguishing the goods/services of one trader from those of another.

Which leads to the following question; what about smells, colours, sounds and other type of trade marks? Are they capable of being validly registered in our country since sounds cannot be visually reproduced?

Countries such as the US, Hong Kong, Singapore, Taiwan, India, France, New Zealand, Australia and even Canada have amended their trade mark law and are now accepting application for the registration of sound trade marks. The Federal Court of Canada’s approval of the MGM sound trade mark consisting of a lion’s roar, filed almost 20 years ago shows the importance of non traditional trade marks and more particularly sound trade marks.

In the US for example, a sound mark needs to be described clearly in order to be understood by the average everyday person and accompanied by an audio or video reproduction. The description should clearly define all the details which constitute the trade mark. The US trade mark register is filed up with such type of description: “ The trade mark is a sound mark which comprises the sound of three steps taken by a horse on a pavement, followed by the sound of a cow mooing ( clop,clop,clop, Moo Moo) as rendered in the CD accompanied this application”.

In the United Kingdom on the other hand, the sound mark needs to be graphically represented in the form of musical notes to ensure that the mark is clear and precise.

What if South African law was outdated? With the evolution of technology, our trade mark laws and trade mark offices need to also evolve in order to meet people’s need as to enable people to file their sound trade mark on line and accompany it with a digital file of the sound. Graphic representation could also be achieved by using adapted computer programs that could be able to read and reproduce sonograms, spectrogram etc…

People are now more and more moving away from traditional trade marks and relying on non traditional trade marks such as sounds, scents, holograms, motion marks which appeals differently to our five senses.

Everybody wants their products to stand out from their competitors. Companies spend billions on marketing their trade mark so that they acquire a reputation and goodwill so that the consumer remembers their product. If one wants to have a viable brand, one needs to think of a trade mark that will have an impact on consumers and will be everlasting. This can easily be achievable by using a trade mark that incorporates the five senses. Due to technologies and globalization, those companies strive to create the best brand and for that, they spend time and money in creating non conventional/ traditional marks.

Auditory memory is one of the strongest human memory based on the fact that it enables a person to recall pictures, specific events or moments and even emotions.  When a person hears the Nokia ringtone, they don’t have to see the phone but they know it’s a Nokia phone. There is more to a sound, a jingle or music, these are powerful tools that can be used as trade marks and influence consumer’s decision making.

Our legal system needs to meets today’s needs, and for that, it needs to be in pace with technological advances.  According to section 2(2) of the trade mark Act;

“References in this Act to the use of a mark shall be construed as references to-

  • The use of a visual representation of the mark;
  • In the use of a container, the use of such container; and
  • In the case of a mark which is capable of being audibly reproduced, the use of an audible reproduction of the mark.”

Although section 2(2) does not clearly exclude a sound as a trademark, it should be amended to expressly include it as part of the definition of a mark and therefore, a trade mark.

For more information, please contact:

RACHEL HABIB
Attorney
Department: Trade Mark
Tel: +27 11 324 3096
Email: rachelh@dmkisch.com

Author: Rachel Habib

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Marketing Rights at Sporting Events such as the Comrades Marathon

DMK-a1BWhen major sporting events are about to take place, we see an incline in instances of ambush marketing.  With the 90th Comrades Marathon about to take place on 31 May 2015, the Comrades Marathon Association (CMA) has issued a stern warning against would-be ambush marketers trying to ride on the coat tails of the prestigious event in a last minute effort to sell their products and services.  Typically ambush marketers will make use of unauthorised registered trade marks proprietary to the CMA on their products or services creating an impression that such products or services are associated with the event (where such third parties are not or have no affiliation with official sponsors of the event).  The CMA has advised that on Race Day the Route will be monitored by the SAPS to identify if any instances of ambush marketing are being engaged in, and will confiscate any illegal products.  It furthermore reserves the right to institute any legal proceedings against the guilty parties where necessary.  Legal proceedings could entail such ambush marketers being sued on the basis of trade mark infringement if they are making unauthorised use of registered trade marks such as “Comrades Marathon”, “The Ultimate Human Race” and “Amabeadibeadi” and or passing off  under the common law, which may even include a claim for damages.  The Advertising Standards Authority Code also lists certain unacceptable practises that constitute variant forms of ambush marketing and that are considered to be objectionable on such basis, and whereby monetary fines can be imposed on guilty parties.   It is possible to approach the CMA to seek permission to sell certain products and services encompassing or bearing reference to the Comrades Marathon, but time is of the essence as the starting gun-shot is about to be fired!

Ambush marketing is defined as the practice by which a rival company attempts to associate its products or services with an event that already has official sponsors.

For more information please contact:

Karen 1KAREN KITCHEN
Director
Department: Trade Mark
Tel: +27 (0)11 324 3057
Email: karenk@dmkisch.com

Author: Karen Kitchen

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Is all fair in love & wine? The Robertson judgement.

DMK-a2BThe Supreme Court of Appeal recently handed down another interesting and decisive judgment in the case of Roodezant Ko-operatiewe Wynmakery v Robertson Winery (Pty) Ltd and the Registrar of Trade Marks (Case No. 503/2013). This case confirmed that trade marks, besides from the fact that they may consist almost solely of the name of a geographical area, can acquire distinctiveness.

In this case, Robertson Winery (Pty) Ltd (“Robertson”) applied to remove the trade mark ROBERTSON HILLS, which was registered by Roodezant Ko-operatiewe Wynmakery (“Roodezant”). Robertson claimed that this trade mark registration was one wrongly made in light of its prior trade mark registrations (all of which incorporated the mark ROBERTSON).  Robertson also alleged that it had been using and distributing wines under the ROBERTSON WINERY label trade mark for some 60 years. The Court paid particular attention to the fact that Robertson’s wines were the only ones that were ever produced under the trade mark ROBERTSON to identity the producer of the product.

The Court had to determine whether the ROBERTSON HILLS trade mark so resembles Robertson’s prior trade marks that if the competing marks are all used in relation to wine, such use would be likely to cause deception of confusion.

Roodezandt argued that the common element of the competing trade marks is the word ROBERTSON, which was the name of the town and defined production area for wine in terms of the Wine of Origin Scheme (“WO Scheme”). As such, it argued that Robertson was not entitled to claim the exclusive use of an ordinary geographical term.

The Court however disagreed with this argument and concluded that, simply because ROBERTSON was a name of a geographical area does not necessarily mean that it could not acquire distinctiveness and serve as a trade mark, in its own right.

The Court followed the decision made in the case of Groupe LFE (SA) (Pty) Ltd v Swartland Winery Ltd (467/09) [2011] ZASCA 4. In this case, SWARTLAND formed part of the Respondent’s trade mark, in addition being the name of a production area.  The Appellant used the word SWARTLAND on its label to indicate that it was a wine of origin produced in the Swartland geographical area, as it was entitled to do in terms of the WO Scheme. However, the court found that the appellant was not using the term SWARTLAND on its wine label simply to indicate a wine of Swartland origin, but was using it as a trade mark, to distinguish its wine from other traders. As such, its use constituted an infringement of the Respondent’s trade mark.

The ROBERTSON mark was used by Robertson as a trade mark. Roodezant was not suggesting that its ROBERTSON HILLS wines are produced as wines of origin in the Robertson geographical area, but it was using it exclusively as a badge of origin. The fact that Robertson is also the name of a production area under the WO Scheme is relevant only with regard to the origin of the grapes from which the wine is made. This concept is distinct from the use of trade marks as badges of origin of wine.

The Court therefore concluded that there was a likelihood of confusion and removed the ROBERTSON HILLS trade mark from the Register.

The Court also concluded that the cancellation of a trade mark is effective from the date on which the application for cancellation was brought. This brings finality to the question of whether the cancellation would date back to the date on which the trade  mark was registered (i.e. making the cancellation retrospective). The Court concluded that the retrospective effect in this regard may have consequences which may be substantially unfair, for example when a proprietor has used its trade mark for a lengthy period prior to cancellation.

It appears that all is still fair in love and wine. Producers of wine are entitled to refer to geographical areas in which the wine is produced on their wine labels. However, the use by a proprietor of a geographical area on its wine label is not, in itself, sufficient to prevent a trade mark infringement claim, or entitle one to register a trade mark which may conflict with another’s prior trade mark incorporating the same geographical name. Wine producers, when formulating new brand names for their wine, should take cognisance of prior brand names which may incorporate the same geographical terms.

For more information please contact:

Gillian Griffiths
Associate
Department: Trade Mark
Tel: +27 (0)11 324 3020
Email: gilliang@dmkisch.com

Author: Gillian Griffiths

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

The Intellectual Property Laws amendment act no. 28 of 2013 and its application in respect of Trade Marks

DMK-a2BINTRODUCTION

The above Act (‘the IPLA Act”) was assented to by the President on 10 December 2013 and will come into operation on a date to be fixed by the President by proclamation in the Gazette. This will take place after the necessary regulations have been drafted and approved.

In the meanwhile it will be instructive to see how the amendments brought about by the IPLA Act introduce new concepts into our trade mark law, and how these will operate and influence practice under the Trade Marks Act as amended (“the Act”).

NEW DEFINITIONS

The IPLA Act introduces various new definitions that are common to the four  intellectual property (IP) Acts that are amended in the IPLA Act viz the Performers’ Protection Act, the Copyright Act, the Trade Marks Act and the Designs Act. These definitions are repeated under various sections of the IPLA Act, and include  “collecting society”, “community protocol”, “Council” (i.e. the National Council for Indigenous Knowledge), “database” (i.e. the National Database for Indigenous Knowledge), “Fund” (i.e. the National Trust Fund for Indigenous Knowledge), “indigenous community”, “National Trust” (i.e. the National Trust for Indigenous knowledge). However, the following (new) definitions are of particular importance for application to and in the Act viz:

  1. TRADITIONAL TERM OR EXPRESSION includes an indigenous term or expression and a derivative indigenous term or expression;
  2. DERIVATIVE INDIGENOUS TERM OR EXPRESSION means any term or expression forming the subject of this Act, applied to any form of indigenous term or expression recognized by an indigenous community as having an indigenous or traditional origin, and a substantial part of which was derived from indigenous cultural expressions or knowledge irrespective of whether such derivative indigenous term or expression was derived before or after the commencement of this Act;
  3. INDIGENOUS TERM OR EXPRESSION means a literary, artistic or musical term or expression with an indigenous or traditional origin and a traditional character, including indigenous cultural expressions or knowledge which was created by persons who are or were members, currently or historically, of an indigenous community and which is regarded as part of the heritage of the community;
  4. INDIGENOUS COMMUNITY means any recognizable community of people originated in or historically settled in a geographical area or areas located within the borders of the Republic, as such borders existed at the date of commencement of this Act, characterized by social, cultural and economic conditions which distinguish them from other sections of the national community, and who identify themselves and are recognized by other groups as a distinct collective;
  5. INDIGENOUS CULTURAL EXPRESSIONS OR KNOWLEDGE means any form, tangible or intangible, or a combination thereof, in which traditional culture or knowledge are embodied, passed on between generations, and tangible or intangible forms of creativity of indigenous communities, including, but not limited to –
    • Phonetic or verbal expressions such as stories, epics, legends, poetry, riddles, and other narratives, words, signs, names and symbols;
    • Musical or sound expressions, such as songs, rhythms and instrumental music, the sounds of which are the expression of rituals;
    • Expressions by action, such as dances, plays, ceremonies, rituals, expressions of spirituality, or religion, sports, traditional games, puppet performances, and other performances, whether fixed or unfixed; and
    • Tangible expressions, such as material expressions of art, handicrafts, architecture, or tangible spiritual forms, or expressions of sacred places;
  6. GEOGRAPHICAL INDICATION in as far as it relates to indigenous cultural expressions or knowledge, means an indication which identifies goods or services as originating in the territory of the Republic or in a region or locality in that territory, and where a particular quality, reputation, or other characteristic of the goods or services is attributable to the geographical origin of the goods or services, including natural and human factors.

AMENDMENTS TO THE ACT – CERTIFICATION TRADE MARKS AND COLLECTIVE TRADE MARKS –

Application to traditional terms and expressions and geographical indications

REGISTRABLE TRADITIONAL TRADE MARKS

(New) section 43A of the Act provides that the newly introduced sections of the Act shall apply to traditional terms and expressions and geographical indications. Nothing in these sections shall be construed as conferring any rights on any person in respect of intellectual property which is not a traditional term or expression.

New section 43B provides that, other than rights acquired prior to the commencement of the IPLA Act, a traditional term or expression shall not be capable of constituting a trade mark (i.e. an ordinary trade mark ( – comment by the author hereof). A traditional term or expression shall be capable of constituting a certification or collective trade mark or a geographical indication. In order to be registrable as a certification or collective trade mark, a traditional term or expression must be capable of distinguishing the goods or services of an indigenous community from that of another community or person.

Geographical indications or other marks of geographical origin may be registered as certification marks or as collective marks, respectively; and the Registrar is required to indicate clearly in the Register that the certification mark or collective mark, respectively, is a geographical indication.

However, no right in respect of a derivative indigenous term or expression or knowledge shall be eligible for registration unless –

  1. prior informed consent has been obtained from the relevant authority or indigenous community; and
  2. disclosure of the indigenous expression or knowledge has been made to the Companies and Intellectual Property Commission; (“CIPC”) and
  3. a benefit-sharing agreement between the applicant and the relevant authority or indigenous community has been concluded.

If an indigenous community has established a community protocol then that protocol must be taken into account in any interaction with the indigenous community.

A traditional term or expression or geographical indication shall only be registrable in terms of this section if –

  1. the traditional term or expression or geographical indication is a derivative indigenous term or expression or geographical expression and was created on or after the date of commencement of the IPLA Act, and the community from which the term or expression, or a substantial part thereof originated, is or was an indigenous community when the term or expression was created; or
  2. the traditional term or expression or geographical indication was passed down from a previous generation.

UNREGISTRABLE TRADITIONAL TRADE MARKS

(New) Section 43C provides that traditional terms and expressions and geographical indications shall not be registrable, or if registered shall, subject to any rights in respect of a traditional term or expression acquired by any person prior to the commencement of the IPLA Act, be liable for removal from the register:

subject to sections 42 and 43, – if these are marks as set out in section 10(2)(b) of the Act; or

subject to section 43B(3), a mark that consists exclusively of a traditional term or expression and which in the bona fide and established practices of the trade has become indicative of or is generally associated with the goods or services in respect of which the mark is sought to be registered.

NATIONAL DATABASE FOR INDIGENOUS KNOWLEDGE & APPLICATIONS FOR REGISTRATION

(New) Section 43D deals with the above aspects. The database will constitute and function as a sub-register within the register of trade marks in respect of traditional terms and expressions and geographical indications. Such terms, expressions and geographical indications contained in applications referred to the Council and accepted in terms of subsection 14 and sections 42 and 43 or 43D, will be recorded in the database.

A natural person who has created a traditional term or expression or a geographical indication, or a natural or juristic person authorized to act on behalf of an indigenous community or on behalf of a natural person, or a person appointed by the Minister of Trade and Industry (“the Minister”) to act on behalf of an indigenous community which is no longer in existence, may submit a request to the Registrar of trade marks as prescribed for a traditional term or expression or a geographical indication to be registered in the database.

The applicant for registration and the proprietor shall be the National Trust in the event that –

  1. the originator of the traditional term or expression or the geographical indication cannot be determined; or
  2. the originator is an indigenous community; or
  3. the indigenous term or expression or the geographical indication has developed in a manner that proprietorship cannot be shared amongst indigenous communities.

However, in all other instances related to indigenous terms or expressions, a person authorized to act on behalf of an indigenous community, or on behalf of an individual, may apply and be the proprietor; or in all other instances related to geographical indications, such a person or the relevant member of the indigenous community may apply and be the proprietor; or in all other instances related to derivative traditional terms or expressions, the relevant member of the indigenous community may apply and be the proprietor.

It should be noted that, for the purposes of the Act, an indigenous community is deemed to be a juristic person.

If the applicant for registration is an indigenous community, the request referred to above shall include a community protocol; and the protocol must be kept with the registration.

The CIPC may determine which information in the database must be kept confidential; and if the protocol indicates that certain information is sacred or must be kept in confidence, the CIPC is obliged to treat that information confidentially.

Any person who has an interest in a traditional term or expression or a geographical indication may submit a request to the Registrar of trade marks for the amendment or removal of a traditional term or expression or a geographical indication in the database.

If it appears to the Registrar of trade marks that the mark sought to be registered consists exclusively of, or an essential part thereof constitutes, a traditional term or expression or a geographical indication as contemplated in section 43B and that it is registrable in terms of the abovementioned sections 42, 43 or 43B, the registrar shall register the mark.

However, if it appears to the Registrar of trade marks that the mark sought to be registered is not registrable in terms of the abovementioned sections, the Registrar shall provisionally refuse the application and refer it to the Council for its advice. The Council shall consider such application and advise the Registrar within three months whether or not, in its opinion, the mark can be registered. Upon receipt of the advice of the Council, the Registrar shall accept or refuse the application.

In the case of an acceptance by the Registrar of trade marks, the Registrar shall notify the Council accordingly. The Registrar shall also notify the Director-General of the Department of Agriculture.

It should be noted that section 27(1)(a) and (b) of the Act does not apply to a traditional term, expression or geographical indication.

TERM OF PROTECTION

(New) Section 43E provides that the duration of a registration for derivative terms or expressions and geographical indications shall be as set out in section 37 of the Act viz for a period of 10 years. However, the duration of a registration in the case of indigenous terms or expressions or geographical indications viz that have been passed down from a previous generation, shall be in perpetuity.

INFRINGEMENT OF TRADITIONAL MARKS AND RELATED MATTERS

(New) section 43F provides that a proprietor of a trade mark in respect of a traditional term or expression shall not be able to interfere with or restrain a person referred to in section 35 of the Act or a person who has commenced using a mark in the course of trade from a date prior to the commencement of the IPLA Act and has continued to make bona fide use of such mark.

However, if any commercial benefit has been derived from such use after the date of registration of the traditional term or expression or geographical indication, then a licence fee, or a benefit, or both, shall be paid by such person to the proprietor.

Any person who has acquired rights as above, must comply with the provisions of (new) section 43B(6)(b) and (c) within 12 months after the commencement of the IPLA Act viz that person must make disclosure of the indigenous cultural expression or knowledge to the CIPC; and that person must conclude a benefit-sharing agreement with the relevant authority or the indigenous community(- Provided that the rights of the indigenous community to licence fees or benefits, or both, shall start on the commencement of the IPLA Act; and such person shall continue to hold his or her rights in the same manner as before the commencement of the IPLA Act.)

Any person who intends to acquire rights pertaining to use of an indigenous term or expression or geographical indication after the commencement of the IPLA Act, must comply with the provisions of (new) section 43B(6), as set out above.

The amount or value of the licence fee, benefit, or both, as contemplated above or as negotiated, shall be determined by agreement between the user of the mark and the owner thereof; or by one or more collecting societies representing one or both parties; or, in the absence of agreement, by an institution accredited by the CIPC; or by arbitration in terms of the Arbitration Act. (- Provided that, if the above persons or collecting societies cannot agree on which referral to follow, as set out above, within a reasonable period, then any party may refer the dispute for resolution in terms of (new) section 43I (-see below).)

Agreements concluded in terms of the above sections must be submitted to the Council which must scrutinize the agreement for compliance with intellectual property laws, including the Act, and the community protocol; and must, where any clause within the contract is regarded as not being to the benefit of the indigenous community or a member of the indigenous community concerned, require re-negotiation of that clause and provide the necessary advice.

The owner of a certification or collective trade mark in a derivative indigenous term or expression or geographical indication must pay a licence fee or benefit, as agreed above, to the owner or owners of the certification or collective trade marks in the indigenous term or expression or geographical indication from which the derivative indigenous term or expression or geographical indication was derived. However, where a person derives less commercial benefit from the use of a traditional term or expression or geographical indication than the prescribed value, such person shall be excluded from the above requirement to pay a licence fee or benefit.

A traditional term or expression or geographical indication may be used without obtaining prior consent if it is for the purpose of private study or private use; or professional criticism or review; or reporting on current events; or education; or scientific research; or legal proceedings; or making of recordings and other reproductions of indigenous cultural expressions or knowledge for purposes of their inclusion in an archive, inventory, dissemination for non-commercial, cultural heritage safeguarding purposes and incidental uses. However, only such portions as are reasonably required for such use are to be made/used (-the author’s comment) and the trade mark owner’s name must be acknowledged.

NATIONAL TRUST AND FUND FOR INDIGENOUS KNOWLEDGE

(New) section 43G provides that the National Trust and Fund shall constitute and function as a National Trust and Fund in respect of traditional terms and expressions and geographical indications for purposes of the IPLA Act. All monies payable in respect of the use of an indigenous term or expression or geographical indication registered under the IPLA Act and owned by the National Trust must be paid into the Fund and must be applied for the benefit of indigenous communities in the manner prescribed.

ASSIGNMENT AND LICENCES

(New) section 43H provides that a certification or collective trade mark shall not be transmissible by assignment, testamentary disposition or operation of law but the doing of any act may be licensed. However, assignment of an indigenous term or expression or geographical indication to a collecting society or transfer to a duly appointed representative of the indigenous community may be carried out.

In the event that a certification or collective trade mark vests in a representative of an indigenous community, that community may, upon the death or liquidation of that representative, as the case may be, or prior to the death or liquidation of that representative, by agreement as set out in the community protocol, transfer such certification or collective trade mark to a person, as the indigenous community may decide.

In the event of a certification or collective trade mark vesting in a representative of an indigenous community, such trade mark shall automatically upon the death of the last living member of such indigenous community transfer to the National Trust.

DISPUTES

(New) section 43I provides that the CIPC must accredit certain institutions which have the necessary capacity to adjudicate any dispute arising from the IPLA Act. Any dispute arising from the application of the IPLA Act must first be instituted in such an institution. The Minister shall prescribe the fees, processes and formalities relating to the institution and adjudication of a dispute.

No person appearing in proceedings before such an institution shall have the right to legal representation unless –

  1. the adjudicator and all other parties consent; or
  2. the adjudicator, after considering –
    • the nature of the questions of law raised by the dispute;
    • the relative complexity and importance of the dispute; and
    • the comparative ability of the parties to represent themselves in the adjudication,

concludes that it would be unreasonable to expect a party to deal with the adjudication without legal representation.

Any adjudication must take into account existing customary dispute resolution mechanisms.

The decision of the institution may be served, executed and enforced as if it was an order of the High Court.

Any party to proceedings before such an institution may appeal to a court of law against any decision of such institution, and the appeal must be noted and dealt with in the manner prescribed by law for appeals against a civil order or decision of a single judge.

NATIONAL COUNCIL FOR INDIGENOUS KNOWLEDGE (“THE COUNCIL”)

(New) section 43 J provides that the Council must advise the Registrar of trade marks on the registration of traditional terms and expressions under the Act.

COMPLIANCE WITH INTERNATIONAL AGREEMENTS

(New) section 43K provides that the Minister may by notice in the Gazette advise that any provision of the Act, as specified in that notice, shall apply to a country specified so that a community recognized in the specified country as an indigenous community shall be deemed to be an indigenous community as defined in this Act; and so that traditional terms and expressions and geographical indications recognized in the specified country as such shall be deemed to be traditional terms and expressions and geographical indications as defined in this Act.

The Minister may in such notice make the provisions of this Act applicable, in respect of a specified country, to its citizens or subjects; to persons who at material times are domiciled or resident in the listed country and who are members of an indigenous community in that country; and to juristic persons incorporated under the laws of the specified country and representing indigenous communities of that country.

The abovementioned notice may include exceptions or modifications to the application of this Act in respect of a specified country; provide for general application of this Act; or may limit application of this Act to such types of traditional terms and expressions and geographical indications as may be specified.

No notice shall be issued under this section in respect of any country which is not a party to a convention relating to trade marks to which the Republic is also a party, unless the Minister is satisfied that, in respect of the class of traditional terms and expressions and geographical indications to which the notice relates, provision has been or will be made under the laws of that country whereby adequate protection will be given to owners of traditional trade marks under this Act.

Section 35 of the Act shall, with the necessary changes required by the context, apply in respect of traditional terms or expressions.

AMENDMENT OF SECTION 69 OF THE ACT

(New) section 69(4) (et seq) provides that the Minister may make regulations providing for the fees, processes and formalities related to the submission and adjudication of a dispute set out in section 43I.

The Minister may also make regulations in consultations with the Minister of Finance, providing for the establishment, composition, funding and functions of collecting societies contemplated in section 43F, and any other matter that may be necessary or expedient to regulate for the proper functioning of such societies.

The Minister may further make regulations providing for the appointment of a person to act on behalf of an indigenous community which is no longer in existence.

The Minister may prescribe the value of a commercial benefit contemplated in section 43F(7).

The Minister may issue guidelines on any aspect of the IPLA Act, including –

  1. protection of traditional terms and expressions and geographical indications;
  2. examples and other measures to identify traditional terms and expressions and geographical indications;
  3. the database, insofar as it relates to traditional terms and expressions and geographical indications;
  4. the National Trust and Fund, insofar as it relates to traditional terms and expressions and geographical indications;
  5. the Council, insofar as it relates to traditional terms and expressions and geographical indications; and
  6. the dispute process as set out in section 43I.

COMMENTS ON THE ABOVE AMENDMENTS TO THE ACT

At present the amended (Trade Marks) Act permits local indigenous communities only to obtain protection for their traditional terms and expressions and geographical indications as certification and collective marks – and hence does not presently provide reciprocity for foreign indigenous communities. Such foreign indigenous communities such as the Masai , Himba, or Maori communities, for example, will have to await the Minister’s notification in the gazette in due course to the effect that their communities in the specified countries have been recognized for purposes of granting them reciprocal rights in South Africa to protect their traditional cultural expressions (as our indigenous communities are now able to do). Let us hope that the Minister will attend to this formality as soon as possible so that South Africa can comply with its international obligations in this regard – viz in terms of the Paris Convention and the so-called TRIPS Agreement.

In certain of the above sections reference is made to traditional or indigenous “knowledge” and its protection as a certification or collective trade mark. This appears to be out of place in a Trade Marks Act which in principle does not provide protection for “knowledge” per se but for trade marks that are capable of distinguishing the goods or services of one person or community from that of another. Traditional or indigenous knowledge, correctly speaking, relates to the technical knowledge that exists in indigenous communities, for example, in respect of cultivating, harvesting, processing and treating their community members with plant-based/natural herbs and medicines. In support of the aforementioned comments, reference is made to the recent Bill published in the Government Gazette No. 38754 dated 20 March 2015 by the Department of Science and Technology and entitled “Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014”.

Bearing in mind that the definitions of “device” and “mark” require that these must generally be capable of being represented graphically, it seems peculiar that the definition of INDIGENOUS CULTURAL EXPRESSIONS OR KNOWLEDGE (as set out above) includes the wording “intangible” and “unfixed” (and even ‘tangible “spiritual” forms’) which appear to be at odds with the aforementioned requirement of a “device” and a “mark”.

Another comment is that the legislator has seen fit to protect traditional terms and expressions by way of certification marks, collective marks and geographical indications. The use of the first of these is not fully understood because it is not clear why certification marks should be use as a vehicle. Certification marks are invariably used to indicate a certain quality or standard such as the SABS mark or the WOOLMARK, etc. However, these characteristics do not appear to be present in traditional terms or expressions that can be protected as trade marks unless the Council was to register for example an indigenous cultural expression that can serve as an ”umbrella” mark for use by all South African indigenous communities to indicate and certify that their goods originate from such communities (and not from a bogus origin).

A last comment is that the IPLA Act and its impact on the Trade Marks Act provide a complex piece of legislation. Firstly, jurists, including our courts, may struggle with its interpretation; and application, and secondly one wonders whether such extensive amendments to the Trade Marks Act were required – and whether traditional terms and expressions could not simply have been registered under the Act in its unamended form namely as ordinary and collective marks.

For more information, please contact:
ANDRE VAN DER MERWE
Director
Department: Trade Mark
Tel: +27 11 324 3084
Email: andrev@dmkisch.com

Author: Andre van der Merwe

Copyright reserved

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Your Trade Mark is not enough for you to freely trade Nigeria

DMK-a5BCompanies and individuals trading in the food industry, the pharmaceutical and medical industry, as well as in the cosmetics industry should be aware of the laws in Nigeria regarding the importation, manufacture, distribution, sale or even advertisement of their products.

As opposed to many other countries where one can freely sell, distribute or advertise one’s products as one wishes, in certain industries in Nigeria one needs to register with the National Agency for Food and Drug Administration and Control (NAFDAC). NAFDAC is a Nigerian government agency under the Federal Ministry of Health which is responsible for regulating and controlling the manufacture, importation, exportation, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, chemicals and packaged water.

The application for registration with NAFDAC is over and above one’s trade mark registration so having a registered trade mark in Nigeria does not exempt one from having to register with NAFDAC. It is, however, a prerequisite for registration with NAFDAC that one has an existing trade mark registration or a trade mark application which has at least proceeded to acceptance.

Our firm would be more than happy to assist you with any queries regarding registering with NAFDAC, as well as the registration of your trade mark.

For more information, please contact:

RACHEL HABIB
Attorney
Department: Trade Mark
Tel: +27 11 324 3096
Email: rachelh@dmkisch.com

Author: Rachel Habib

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.