ECLA 2021 paper
Question 1
Q.1.1
A South African court will exercise jurisdiction in certain instances. Identify the grounds
for determining and establishing jurisdiction in South African law.
### Answer:
In South African law, the grounds for determining and establishing jurisdiction include:
1. Territorial Jurisdiction: The court has jurisdiction if the cause of action arose within its
geographical area or if the defendant resides or has a place of business within that area.
2. Subject Matter Jurisdiction: Different courts have jurisdiction over different types of
cases. For example, the High Court handles more serious civil and criminal matters,
while Magistrates’ Courts handle less serious matters.
3. Monetary Jurisdiction: Different courts have monetary limits on the cases they can
hear. For instance, the Small Claims Court deals with claims up to a certain amount.
4. Personal Jurisdiction: The court can have jurisdiction over a person if they are served
with court papers within the court's area of jurisdiction.
5. Jurisdiction by Consent: Parties can agree to submit to the jurisdiction of a particular
court, even if it would not otherwise have jurisdiction.
6. Jurisdiction based on Nationality or Domicile: In some cases, the nationality or
domicile of the parties can establish jurisdiction.
Question 2
Q.2.1
Does Sally’s use of her competitor's name, 'New Nation Travel Agency,' as an AdWord
constitute trademark infringement? Refer to relevant prescribed case law in your
answer.
Answer:
The use of a competitor's name as an AdWord can constitute trademark infringement if
it causes confusion among consumers about the source or sponsorship of the goods or
services. In South African law, the following principles are relevant:
1. Likelihood of Confusion: If the use of the competitor’s name is likely to cause
confusion or deceive consumers into believing that there is a connection between the
two businesses, it can be considered trademark infringement.
2. Case Law Example: In the case of "Laugh It Off Promotions CC v SAB International
(Finance) BV t/a Sabmark International and Freedom of Expression Institute," the court
considered whether the use of a trademark can cause dilution or harm the distinctive
character of the trademark.
Since 'New Nation Travel Agency' is an unregistered trademark, Sally’s use of it as an
AdWord could still be challenged under common law principles of passing off if it
misleads consumers.
Q.2.2What are the requirements that Sally has to meet to register her company name as
a trademark? Which, if any, of these requirements does Sally fail to meet?
The requirements for registration as a trademark in South Africa are:
1. Must be a “mark”: The name must qualify as a mark, which includes any sign capable
of being represented graphically.
2. Must comply with the “trademark” definition: It must be capable of distinguishing the
goods or services of one person from those of others.
3. Must be distinctive (s 9): The name must be able to distinguish Sally’s goods or
services from others.
4. Not be disqualified (s 10): The name must not fall under any disqualification grounds,
such as being descriptive, generic, or likely to cause confusion.
5. Not contra bonos mores: The name should not be against public policy or morality.
If a mark is registered as a trademark, this registration lasts for 10 years and can be
renewed for additional 10-year periods indefinitely.
Based on the provided information, it is unclear if Sally's company name, "Travel Agents
and Co," meets the distinctiveness requirement, as it seems descriptive of the services
offered. Therefore, she might fail to meet the distinctiveness requirement. Additionally,
if the name "Travel Agents and Co" is deemed descriptive or generic, it may also be
disqualified under section 10.
Q.2.3
Assess whether Sally can register her domain name [Link] as a
trademark.
Answer:
Registering a domain name as a trademark requires that the domain name meet the
same requirements as any other trademark. The domain name
"[Link]" may face challenges because:
1. Distinctiveness: The term "travel agents" is generic and descriptive of the services
offered.
2. Not Confusingly Similar: If there are existing trademarks that are similar, this could be
a hurdle.
3. Common Law Rights: Even though "travel agents" is descriptive, if Sally can
demonstrate that her use of the domain name has acquired distinctiveness or
secondary meaning through extensive use, she might have a better chance of
registering it.
Given the generic nature of "travel agents," it is unlikely that she will be able to register
the domain name as a trademark without demonstrating significant acquired
distinctiveness.
Certainly! Here are the answers without bold formatting:
**Q.3.1 - Copyright Protection for Various Works**
The Copyright Act typically protects the following types of works:
1. Literary Works: This includes text-based works such as books, articles, and computer
programs.
- Example: Sarah's website content, if written by her or under her direction, could be
considered a literary work.
2. Artistic Works: This category covers visual arts, including photographs, paintings,
drawings, and sculptures.
- Example: Any artwork or graphics used on Sarah's website could fall under this
category.
3. Musical Works: This pertains to musical compositions with or without words.
- Example: If Sarah includes any music compositions on her website, those could be
protected.
4. Dramatic Works: This includes plays, dance, and choreography.
- Example: If Sarah includes any videos of fitness routines or instructional dance,
these could be considered dramatic works.
**Q.3.2 - Requirements for Copyright Protection**
For Sarah's website to be protected under copyright law, it must meet the following
requirements:
1. Originality: The content on the website must be original, meaning it is independently
created and not copied from others.
2. Fixed Form: The content must be fixed in a tangible medium of expression, such as
written on paper or saved digitally.
3. Creative Expression: The work must involve some degree of creativity, meaning it
reflects the creator's choices and is not purely factual or utilitarian.
Given these requirements, if Sarah or her designated authors create original text,
graphics, or other content for the website, it would likely be eligible for copyright
protection.
**Q.3.3 - Copyright Infringement Due to Hyperlinks**
Sarah has instructed Carol to create hyperlinks on her website that direct visitors to
other webpages containing nutritional and fitness information.
Hyperlinking itself typically does not constitute copyright infringement because it does
not involve copying the content. Instead, it directs users to content hosted on other
websites. However, there are some considerations:
- Authorization: Sarah should ensure that the websites she links to have authorized the
linking. Most websites allow basic linking without issues, but some might have terms of
use that restrict linking.
- Framing: If the hyperlinking involves framing the linked content within Sarah's website
(making it appear as if it's part of Sarah's website), this could potentially raise copyright
issues, as it might be seen as reproducing the content without permission.
In summary, as long as Sarah's hyperlinks are straightforward and do not involve
unauthorized reproduction or misleading framing, she is unlikely to be committing
copyright infringement merely by linking to other websites.
Certainly! Here's the information without bold formatting:
**Q4.1**
1. Act or conduct committed by Sarah:
Sarah has engaged in hate speech. Hate speech is generally defined as any speech,
gesture, conduct, writing, or display that may incite violence or prejudicial action
against or among individuals based on race, ethnicity, gender, religion, or other grounds.
In this case, Sarah's statement that "All Chinese people are cruel, heartless people that
don't deserve to live because they all eat dogs" clearly targets and discriminates against
Chinese people based on their ethnicity and cultural practices.
2. Legislative measures in place:
In many jurisdictions, including South Africa, laws are in place to prevent hate speech
and protect individuals from such harmful statements. In South Africa, the Promotion of
Equality and Prevention of Unfair Discrimination Act (PEPUDA) specifically addresses
hate speech. PEPUDA defines hate speech broadly and provides legal recourse for
individuals who are victims of hate speech.
3. Steps Jim may take:
- Report the incident: He can report Sarah's statement to the platform where it was
posted (if applicable) and request its removal.
- Legal action: Jim can explore legal action against Sarah under PEPUDA for hate
speech. This could involve filing a complaint with the South African Human Rights
Commission (SAHRC) or pursuing a civil case for damages.
- Public awareness: Engaging with advocacy groups or the media to raise awareness
about the harms of hate speech and promote tolerance and understanding.
**Q4.2**
The statement "Sarah in the above scenario can rely on the defence of freedom of
expression, which is an unlimited fundamental right set out in the Constitution" is
incorrect. Here's why:
- Freedom of expression is not unlimited: While freedom of expression is a fundamental
right protected by many constitutions, including South Africa's, it is not absolute. The
South African Constitution (in Section 16) explicitly states that the right to freedom of
expression does not extend to advocacy of hatred that is based on race, ethnicity,
gender, or religion, and that constitutes incitement to cause harm. Hate speech falls
outside the protection of freedom of expression.
- Limitations on freedom of expression: The Constitution allows for reasonable
limitations on the right to freedom of expression when it conflicts with other rights or
public interests, such as the right to dignity, equality, and freedom from discrimination.
Hate speech laws are intended to balance the protection of dignity and equality with the
right to free expression.
- Sarah's statement constitutes hate speech: Sarah's statement about all Chinese
people being cruel and not deserving to live because they eat dogs clearly falls within
the category of hate speech. It targets and denigrates an entire ethnic group based on
cultural practices, which can incite harm and perpetuate discrimination.
Therefore, Sarah cannot rely on freedom of expression as a defense for her statement.
Her statement goes beyond the boundaries of protected speech and can be subject to
legal consequences under South African law.
