Oxford Intellectual Property Research Centre

In 2014, the President of the Republic of South Africa, signed a Protocol to the SADC Tribunal which aimed at stripping the Tribunal of its individual jurisdiction. This, along with the President’s 2010 decision to effectively suspend the operations of the SADC Tribunal, was challenged at the Constitutional Court in Law Society v. President of RSA. The Court held that the President’s conduct was irrational, unlawful and unconstitutional on three grounds. In this article, I focus on the ground that the President’s conduct violated or threatened to violate the Bill of Rights and was therefore held to be unconstitutional. The right of access to justice is guaranteed through the right of access to courts under s 34 and the right to the enforcement of the Bill of Rights under s 38 of the Constitution. The right of access to courts ensures that rights-bearers have an effective remedy through the formal systems of justice. In Law Society, the Court engages in an expansive interpretation of s 34, to apply the right of access to courts to international tribunals. The Court held that South Africans have a right guaranteed by the Bill of Rights to access the SADC Tribunal. The President, in stripping the Tribunal of its individual jurisdiction, breached his duty to respect, protect, promote and fulfil the right under s 7(2). The reasoning behind this conclusion, however, is sparse. This leaves several unanswered questions about the implications of the judgment and the relationship between international law and domestic law. In this article, whilst agreeing with the outcome, I point to the gaps in the Court’s reasoning. I go on to highlight how the Constitution offers a framework for these gaps to be filled, and I briefly trace the various reasons that could have been employed by the Court in justifying its decision. In doing so, I split my analysis into three parts: first, I locate and analyse the Court’s holding in relation to s 34 and its extended application to the international plane. Second, I analyse the finding that there is a directly applicable ‘Treaty right’ that emerges from the SADC Treaty and its attendant 2000 Protocol in two ways: first, as a free-standing application of a provision of an international treaty under s 231, and second, as the application of international law as an interpretive framework under s 39(1)(b) for the proper interpretation of the right in s 34. I then go on to analyse the corresponding duty that arises from a proper interpretation of s 34 and the contours of this duty. I argue that although the Court does not explicitly invoke the principle of non-retrogression, Law Society employed a novel application of the principle to hold the President accountable under s 7(2). I explore the extent and limits of this holding, and explain how it is arguably in line with existing constitutional commitments. Finally, I discuss the implications of the Law Society judgment: for international dispute resolution mechanisms created by ratified treaties, the relationship between international and domestic law in South Africa, and access to justice.

Until relatively recently, there was a stable consensus: trade mark law had no necessary connection with innovation. This consensus was based on the origin indicating function of trade marks. There is no requirement for either the sign or the underlying product to be innovative and many protected marks consist of pre-existing words or images, such as the surnames Ford or McDonald.Trade mark law has therefore not only been historically indifferent to innovation, it has also actively policed this boundary with patent law. However cracks are beginning to appear in the consensus, for three inter-related reasons. (1) It has been suggested that successful branding generates a feedback cycle, which helps firms to recoup investments in R&D, while also encouraging such investments in the future. (2) Trade mark registrations are analysed as indirect and complementary indicators of innovation. They help to identify patterns of innovation, which can be useful for policy formulation. (3) Trade marks also help to protect and reward forms of innovation which cannot be accommodated in other fields of IP, such as service or marketing innovation. This chapter critically engages with these claims, to assess their normative implications (if any).

Trade mark registration systems exist to provide useful information. Registers tell us who owns what. Until recently, it was axiomatic that registers for marks were directed at human readers – an applicant for a trade mark, trade mark registry examiners, vigilant competitors, employees of search and watching agencies as well as the occasional judge. This list now has a new entrant. What are the implications for the registered trade mark ecosystem, when algorithms begin to efficiently and comprehensively read trade mark registers? This chapter outlines the adoption of AI-enabled similarity assessment technology by search agencies, trade mark registries and watching agencies. Building on recent improvements in semantic and image searches, these algorithms identify conflicts between marks at the registry level. They provide a heuristically helpful (upstream) snapshot of conflict risks, based on two dimensions of similarity: marks and goods. However this simplified assessment may unintentionally edge out the more complex multi-factor likelihood of confusion test in a wider range of situations, including trade mark infringement analysis. The limits of these algorithms must be borne in mind.