Adams Advisory - Africa Update 2020

It was on this basis that the Court found that what was seen
on DSTV was a cinematographic film and not a broadcast.
As such, Tellytrack was entitled to the interdict.
This case is welcomed considering there are not many cases
on copyright coming out of our Courts.
Functional Design Registrations – The Definitive Statement is King
A decision concerning a functional design registration highlights the importance of a well-drafted definitive
statement and explanatory statement, particularly where the definitive statement does not take the form
of the often used omnibus-type format.
The applicant brought an urgent design infringement application against the respondent’s floater based
on its functional design registration. The dispute concerned whether or not the respondent’s floater fell
within the scope of the design registration as the respondent identified a number of features depicted
in the drawings lodged in support of the design registration that were not taken by the respondent’s
floater. A feature that was taken by the respondent’s floater was, however, described in the definitive and
explanatory statements.
The court found that with regards to the definitive and explanatory statements, it was neither contemplated
nor intended by the applicant that the general design, shape or form of the floater or the specific graphic
rendering thereof was intended to be indivisible from the feature isolated in the definitive statement.
Accordingly, the feature described in the definitive statement taken alone was found to be sufficient to
infringe the design registration.
SANParks Mapungubwe
South African National Parks (“SANParks”) opposed trade mark
applications which all incorporate the mark MAPUNGUBWE,
such as MAPUNGUBWE SPIRITUAL SITES & elephant device
in classes 41 and 45 in the name of Mapungubwe Game
Reserve (Pty) Ltd, a company with a Swedish national as
the sole director. SANParks is the proprietor of the mark
MAPUNGUBWE NATIONAL PARK, registered in respect of a
wide range of goods and services. The Applicant’s marks
all incorporated the dominant and distinctive element of
the Opponent’s registered MAPUNGUBWE NATIONAL PARK
trade mark and the services covered by its applications
overlap directly with the Opponent’s registrations or are
similar thereto. These applications were filed 3 years after
SANParks registered its marks. The Opponent has made
extensive use of its mark in relation to services covered by
its registrations. It operates the MAPUNGUBWE NATIONAL
PARK which was previously known as Vhembe Dongola and
in 2004 it changed the name to the current one. SANParks
offers a variety of goods and services, game viewing,
walks, night drives, guided walks to the MAPUNGUBWE
Cultural Landscape. It offers accommodation at its various
rest camps. The Opponent was also of the view that the
Applicant cannot claim to be the bona fide proprietor of a
mark incorporating MAPUNGUBWE.
The Applicant in turn contended that MAPUNGUBWE is
the name of a place and a geographical location and as
such no one party could claim exclusive rights in it. It was
contended by the Opponent that the mark MAPUNGUBWE
NATIONAL PARK retained its exclusivity as a trade mark
in respect of the goods and services of interest and is not
a geographical designation. No disclaimer was entered
against the Opponent’s trade mark registrations.
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