LML4802 Assignment 2 Semester 2 2024 | Due September 2024
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Course
The Law of Competition and Trademarks (LML4802)
Institution
University Of South Africa (Unisa)
LML4802 Assignment 2 Semester 2 2024 | Due September 2024. All questions answered.
Kenzo is a Korean manufacturer of computer screens, which he markets under the trademark
VISIONVIEW. Kenzo’s mark VISIONVIEW is not registered as a trademark in South Africa. Kenzo
markets his products worldwi...
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Kenzo is a Korean manufacturer of computer screens, which he markets under the trademark
VISIONVIEW. Kenzo’s mark VISIONVIEW is not registered as a trademark in South Africa. Kenzo
markets his products worldwide through a chain of national distributors. Kenzo’s products are
marketed in South Africa by Manamela (Pty) Ltd, Kenzo’s authorised distributor. The VISIONVIEW
products are of high quality and are the most popular brand of computer screens sold in South Africa.
Kenzo becomes aware that Lungi, a local manufacturer, is marketing a range of television screens
under the trademark VERSIONVIEW. (Korea is a member of the Paris Convention.)
A) Advise Kenzo whether he can prevent Lungi from using the VERSIONVIEW mark in
relation to television screens under the private law of competition.
B) Advise Kenzo whether he can prevent Lungi from using the VERSIONVIEW mark in
relation to television screens under the Trademarks Act 194 of 1993.
Introduction
Kenzo, a Korean manufacturer of computer screens, markets his products globally under the
trademark VISIONVIEW. While the brand is well-known for its high-quality products and is the
most popular in South Africa, the trademark is not registered in South Africa. Recently, Kenzo
discovered that a local South African manufacturer, Lungi, is using a similar mark, VERSIONVIEW,
to market a range of television screens. Since Korea is a member of the Paris Convention, Kenzo
may seek protection under both the private law of competition and the Trade Marks Act 194 of 1993
to prevent Lungi from using the VERSIONVIEW mark. This essay will examine Kenzo’s legal
options under South African law and advise on the best course of action.
(a) : Legal Recourse Under the Private Law of Competition
The private law of competition in South Africa is rooted in the principles of delict and aims to
prevent unfair competitive practices. Delictual actions such as passing off and unlawful competition
are the primary tools available for an aggrieved party like Kenzo to protect his interests, especially
when a trademark is not registered.
Passing Off
One of the most applicable remedies available to Kenzo under the private law of competition is the
common law action for passing off. Passing off occurs when one party misrepresents their goods or
services as those of another party, leading to confusion among consumers. South African courts have
established that passing off occurs when:
There is goodwill or reputation attached to the goods or services in question.
The defendant’s conduct misrepresents their goods or services as being those of the plaintiff.
Such misrepresentation causes or is likely to cause harm to the plaintiff’s goodwill.
Goodwill and Reputation
Kenzo's products, marketed under the VISIONVIEW mark, have become the most popular brand of
computer screens in South Africa. Even though Kenzo has not registered his trademark in South
Africa, his products have gained a significant reputation, thus establishing goodwill in the market.
This is crucial because, in a passing-off action, the claimant must demonstrate that the mark has
gained a sufficient reputation in the relevant jurisdiction. Based on the facts, it is clear that Kenzo
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