el guapo wrote:
Counterfeiting is a very narrow and specific infringement that is sub-set of all the possible ways in which IP rights may be infringed.
"Counterfeit" has a settled meaning in language (and yes, in law) to mean a product that attempts to imitate another to the extent that the purchaser, for example, believes he is buying the "other". So, Fakeleys, Fibsons, etc.
But where a product does not try to do that, it may still infringe on a trademark, or a patent, or simply the "get-up" (how the product or its packaging looks) to pass itself off as, or ride on the coattails of, the "other".
That's probably how I would generally have understood the term, sure, but it turns out that SA law is rather more complicated than that. Copying the branding in order to confuse the customer isn't a necessary feature of the "settled meaning" as described in the Counterfeit Goods Act 37 of 1997 as amended by Counterfeit Goods Amendment Act 25 of 2001. "Counterfeiting" is defined in three different ways, the first of which is, to my eyes, pretty unusual:
'counterfeiting'
a) means, without the authority of the owner of any intellectual
property right subsisting in the Republic in respect of protected
goods, the manufacturing, producing or making, whether in the
Republic or elsewhere, of any goods whereby those protected
goods are imitated in such manner and to such a degree that
those other goods are
substantially identical copies of the
protected goods;
(
http://www.wipo.int/wipolex/en/text.jsp?file_id=180959 - my italics)
That may not be how you or I would define "counterfeiting", or how it is used in normal parlance across the country as a whole. It may be a pretty strange way of naming a set of intellectual property rights that wouldn't fall under counterfeiting legislation in other jurisdictions, but it's there, in the Act, anyway.
(There's a lot more to the act than just that clause, of course—so it would be dangerous to draw too much just from it!)
el guapo wrote:
I certainly hope that Tokai win, though...
Me too!
I've a very strong feeling that Gibson has been jurisdiction-shopping and is using Tokai SA—an independent importer—as a proxy for the beef it actually has with Tokai (which it should have resolved 30-odd years ago, in Japan, anyway). And I don't like that sort of behaviour in businesses.
