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Trade marks with a twist
Recently the Supreme Court of Appeal denied registration of PEPSI TWIST as a trade mark for a soft drink by PepsiCo. Why? 
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Round robin resolutions: Ease in passing resolutions
Broadly speaking, resolutions of the board of directors and the shareholders may be adopted in one of two ways: (i) at a meeting by way of a vote (whether on anonymous voting cards, a poll, by show of hands or otherwise); or (ii) written round robin resolutions. One of the many innovative features of the Companies Act, 2008 (the “Act”) is that it has brought the corporate decision-making procedure in line with modern business practice by expressly allowing for the adoption of resolutions by way of a round robin method.
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The misnomer of a “personal financial interest”: director can be conflicted in more than just a financial sense
The well followed case of the suspension of the former group CFO of PetroSA was recently decided upon in the Cape Town High Court, which case once again highlights the importance of having a practical grasp of the area of law concerning directors’ duties and in particular the duty to avoid a conflict of interest. The new Companies Act, 2008 (the “Act”) has partially codified certain of these directors’ duties in sections 75 and 76.
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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.
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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.
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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.
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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.
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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.
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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.
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The memorandum of incorporation under the 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.
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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.
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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. Each country has its own laws pertaining to marking and not all countries require or even provide for the use of common marking indications. This can complicate packaging, labelling and general marketing for businesses trading in multiple countries.
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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. As Eben Sadie once said: “…the notion of sense of place is what wines are about and the reason they have fascinated mankind since the very inception”.
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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.
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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?
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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.
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