Abstract:
The economic system of South Africa is based on capitalism. This implies the
application of free trade and fair competition, but it is up to the law to regulate this
system. The import and export of goods subject to character merchandising are one
of the growing industries of the twenty first century. Thus, it is very important to
character merchandisers to be able to protect their goods against infringement.
Character merchandising may be defined as the business of merchandising popular
names, characters and insignia in order to enhance the sale of consumer products in
relation to which such names and characters are used. Where unauthorised use or
infringement of a right takes place, the aggrieved merchandiser can institute a claim
of passing off or leaning on in terms of the South African intellectual property law.
The applicable legal principals are, however, less than clear.
By comparing the meaning and application of the common law, character
merchandising and passing off in the English and Australian law to the meaning
and application of these phrases in the South African law, it had come to light that
the South African law is still in its growing phase. Although the South African law
provides the aggrieved merchandiser with the necessary protection, the
development of our law can only improve and compliment our current legal
principals. For example: in Australian law the aggrieved merchandiser does not
need to prove the existence of goodwill to succeed with a claim of passing off.
Mere misrepresentation is sufficient in terms of statute. In South Africa a
merchandiser has to proof the existence of the necessary goodwill or reputation in
order to be successful.
A study of the English and Australian law has provided the South African law with
a starting point on how to develop the intellectual property law to enhance the
import and export of goods subject to character merchandising to and from South
Africa.
