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Cancellation of a written contract using email correspondence
In Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another, the Supreme Court of Appeal ("the SCA") held that it was permissible for a written agreement, which required cancellation to be in writing and signed by the parties, to be cancelled by email.
Protection of Personal Information Act 4 of 2013 has been published
The official version of the Protection of Personal Information Act 4 of 2013 has been published on 26 November 2013.
Proposed legislative changes to fixed term employment agreements - employers beware!
Employers should be aware of certain proposed amendments to the Labour Relations Act and Basic Conditions of Employment Act which have recently been adopted by Parliament. This article focusses on the specific impact of these changes on fixed term contracts.
Developing a cost effective trade mark registration strategy
Trade marks are capital assets of a business that serve the purpose of securing the goodwill between a customer and the proprietor of a product or service. Failure to properly secure exclusivity of a trade mark can have costly consequences, including having to change your trading style and ending up in litigation. Through the trade mark registration process, the protection afforded by trade mark legislation can be used to secure the goodwill that resides in that connection to the exclusion of others. In this post we discuss one approach to a cost effective trade mark strategy. There are many nuances to the topic which fall outside the scope of this post and each particular therefore needs to be assessed on its own merit.
Private companies can be caught off guard by statutory requirements for corporate transactions
The parties to a corporate transaction do not always have the same level of legal expertise or representation, which can have the effect that unintended consequences can arise for one of the parties, such as such as an entrepreneur being forced to exit or an investor being forced to buy out the remaining shareholders.
Accordingly, before negotiating a corporate transaction, even one in respect of a private company, it is imperative to consider the impact that various laws will have on the proposed transaction to ensure the deal can be completed without unintended consequences.
This article briefly highlights some of these statutory requirements that private companies should consider before a corporate transaction.
Formal requirements for company documents in terms of the new Companies Act
The previous version of the Companies Act 61 of 1973 (“Old Act”) placed various obligations on companies regarding formal correspondence. This article briefly examines the position under the new Companies Act 71 of 2008 (“New Act”).
Managing the uptime of business critical Internet-based systems
The development and use of Internet-based applications have become prevalent due to the major improvements in terms of reliability and performance that so-called “cloud computing” offers. Applications such as these are often referred to as “software as a service” or “SaaS” applications, because the end user is presented with a secure service that is accessible (typically via an Internet browser), rather than a physical installation at the end user’s site. It is easy to assume that SaaS services will never leave one in the lurch due to the excellent uptime and performance that users typically enjoy. There are however a number of risks that arise from the use of SaaS. In this article we will take an introductory look at two of these issues, namely managing service levels and business continuity.
What becomes of an IP sub-licence upon termination of the head licence?
From Old Blighty comes the curious case of VLM Holdings Limited v Ravensworth Digital Services Limited, raising the intriguing question of what becomes of an IP sub-licence upon termination of the head licence?
Conflicts of interest under the new Companies Act
In this post we deal with some pertinent issues arising from section 75 of the new Companies Act, which constitutes a partial codification of director’s duties where direct or indirect personal financial interests are involved. The scope of the section in question is wider than some people may anticipate and therefore directors (and other stakeholders) should consider their rights and obligations carefully.
Trade mark invalidated due to copyright ownership
It is easy to make the mistake of thinking that the logo you had commissioned is your property, correct? The law in South Africa states otherwise by default.
Business rescue: is there a reasonable prospect for a successful rescue?
With the introduction of business rescue into South African law through the new Companies Act 71 of 2008, many feared that the process will be abused by serial debtors who are given another loophole to evade repayment of money duly owed to creditors.
The memorandum of incorporation under the new Companies Act 71 of 2008
One of the most important changes brought about by the new Companies Act (“the Act”) is the creation of a new founding document for companies, called a Memorandum of Incorporation (the “MOI”), which combines the current memorandum of association and articles of association of a South African company into one document. The MOI stipulates the rights, duties and responsibilities of shareholders, directors and others within and in relation to a company and other related matters.
Codec licensing: Applicable intellectual property rights
The IP rights governing codecs depend to a large extent on the form a codec takes. Generally, codecs take two forms. Firstly, at the most basic level, they are algorithms for the compression and decompression/coding and decoding of data streams. Secondly, a codec can refer to software that is used to implement the codec algorithm, i.e. software used to compress and decompress or code and decode data streams. We use codecs in our everyday lives – one example is the popular MP3 audio codec which was invented and patented by the Fraunhofer Society in Germany and which generates hundreds of millions in licensing fees.
The use of the ®, ™ and other trade mark markings in South Africa and globally
Trade mark marking refers to the use of symbols or wording to identify a trade mark over which an owner claims exclusive trade mark rights. Two common examples include the ® and ™ symbols.
Using and registering place names as trade marks
Walk into any wine retailer and you’ll be confronted with any number of wines bearing the name of some or other place as a brand. Brands such as SWARTLAND, NAMAQUA and ROBERTSON WINERY come to mind.
Source code escrow agreements and developer insolvency
The outsourcing of software development is common place, with many businesses outsourcing all of their development needs or certain mission critical components thereof. This very often leaves such businesses in a precarious position. The software developer is not prepared to assign its copyright in the software to the business nor is it prepared to reveal the software’s source code, or is only prepared to do so for a sum the business is not prepared to pay. The business (‘the licensee’) is therefore forced to merely license the software from the developer.
The new food labelling regulations and the implications for trade mark proprietors
As a member of the World Health Organisation (“WHO”), South Africa has committed itself to implementing the WHO's Global Strategy on Diet, Physical Activity and Health (“the Strategy”). The Strategy generally seeks to improve global health by, amongst others, enabling consumers to make informed, healthy choices regarding their diets. Given that most consumers obtain nutritional information directly from product labels themselves, one crucial way of facilitating this is to require accurate, standardised and comprehensible information on food labels.
Trade marks, the doctrine of notice and the position of the licensee on assignment
Will the doctrine of notice come to the aid of a licensee, or the holder of some other personal right in a registered trade mark, where that mark is assigned to a third party who refuses to take on the previous proprietor's personal obligations to the holder of the earlier personal right?
Business names and the Consumer Protection Act
South African lawmakers have embraced the consumer-centric approach of their European counterparts and, with the advent of the Consumer Protection Act (“CPA”), have sought to provide local consumers with easy, effective and cheap means of redress against errant suppliers and overly-burdensome arrangements. This is no-doubt desirable, provided that the needs of consumers are balanced with those of business.
Using and registering surnames or first names as brands
It’s only human to want to attach one’s name to one’s offerings. In fact with us lawyers, vanity is so ingrained that we’ve made it a legal requirement to use our own names as our firm names! Can one register a surname or first name as a trade mark? Technically yes, but, as with most things legal, it’s not always that simple.
Secure copyright in writing
People are often caught off guard by the default rules pertaining to ownership of Copyright in a work. While a detailed analysis of these rules falls outside the ambit of this post, you should note that in many cases the person responsible for creating the work would also be the person that owns the work. Specifically this will often be the case where branding, websites and software are created.
Moving into the cloud, or thin air?
There is a tide of posts on the Internet of people celebrating their move “to the cloud” and being done with local storage. This post discusses some of the legal issues to be considered.
Assigning trade mark rights
The rights to a registered trade mark can only be transferred in terms of an agreement in writing, executed between the buyer and seller thereof in terms of section 40 of the Trade Marks Act.
Service level agreements
SLA's should be seen as vehicles promoting effective communication between parties, thereby increasing the likelihood of achieving strategic objectives to the advantages of both the client and the service provider.