The legal protection of sound, scent and colour marks in South Africa: Lessons from the European Union and the United States of America
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Date
2018
Authors
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Journal ISSN
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Publisher
University of the Western Cape
Abstract
A trade mark is defined as a sign that is capable of distinguishing the goods or services of one
enterprise from those of other enterprises. Trade marks, copyright, patents and designs are
some of the forms of intellectual property. Trade marks can be divided into traditional trade
marks and non-traditional trade marks. Traditional trade marks are capable of being represented
graphically, for example logos, service marks or company names. Non-traditional trade marks
are generally not capable of being represented graphically. Examples of these marks are inter
alia, scent, taste, touch and sound marks.
Technology is changing the way business is being conducted. The registration of nontraditional
trade marks has grown exponentially as businesses seek to use innovative ways to
protect their brands. Non-conventional trade marks may be visible signs, examples of which
include colours, shapes, moving images, holograms and positions or non-visible signs such as
sounds, scents, tastes, textures. Visible signs may easily be registered since they satisfy the
requirement of graphical representation. Non-visible marks do not generally meet this
requirement which makes their registration more complicated. An example of a registered
visible non-traditional trade marks is the four finger shape of Kit Kat chocolates.
Description
Magister Legum - LLM (Private Law)
Keywords
Non-traditional trade mark, Registrability, Graphical representation, Distinguishing function, Colour marks, Scent marks, Sound marks, Free competition, Sieckmann test, Technological development