Monday, 5 October 2009

Distinctive IP: Issue no.21, A Double Header,

5 October 2009
2010- Serious Lollipop Threat Averted.

A decision finally in the Metcash case. FIFA feels that Metcash’s sale of lollipops called 2010 POPS - in packaging with soccer balls for the zeros in 2010 and a South African flag – will stuff up the World Cup (some think that FIFA’s arrogance and Bafana Bafana's crapness may just do that too!). Judge Msimeke accepted FIFA's claim that Metcash is unlawfully competing (presumably FIFA sells lollipops too!), because it’s contravening section 15A of the Merchandise Marks Act. This says that it’s an offence for a non-sponsor to associate its brand with the World Cup, and thereby get publicity or promotional benefit from it (some think South Africans know by now that it’s only the MTN’s and FNB’s that are associated with the event, which is why they use the official logo!) The result was predictable. As was the fact that it took nearly 10 months for judgement to be handed down. Given that the tournament is almost upon us, that makes an appeal just about impossible.

Mean Mr. Video.

Balls of a different kind! The Appeal Court has confirmed a decision that ordered Mr. Video to hand over (or ‘deliver up’ in that weird dialect spoken by lawyers) DVDs that it had imported from the USA and offered for rental in SA. The decision also required Mr. Video to pay to the film companies that own the copyright in the films appearing on the DVDs, what in that same dialect is called ‘attorney and client costs’. If you’re lucky enough to be awarded attorney and client costs, you should recover most of what you’ve spent. It’s more likely, however, that you will be awarded what’s called ‘party and party costs’ - a phrase that translates loosely as ‘little more than bugger all’ - something that is likely to leave you feeling decidedly bipolar, with the euphoria of winning the case coming to an abrupt end with the realisation that it’s wiped you out financially!

So why all this aggro from the Men in Black? Well, they felt Mr. Video’s conduct was egregious. Bad even! The DVDs were clearly infringing copies of the films and they had obviously been acquired for unlawful purposes - Mr. Video had imported the DVDs, knowing full well that they wouldn’t work on the DVD players used in South Africa (it got around this little inconvenience by simply issuing customers with instructions on how to decode their machines so that the DVDs would play, nice!). It was also clear that Mr. Video had known that what it was doing was illegal, because it had obtained a legal opinion in advance. And, to top it all, when Mr Video was sued it persisted in defending the matter, even though its attorneys said there was no case. So, all in all, Mr. Video did a lot of things to irritate their Lordships. It’s good to see bad behaviour being punished once in a while.

Email: mail@muhlberg.co.za

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