The South African economy is suffering tremendously due to high unemployment, low business confidence, and weak domestic demand, and many citizens are being retrenched due to the financial distress which companies face. This has led to many South Africans applying innovative ways to make a living to feed their families.
Counterfeit goods are goods often of a lower quality that are sold by a third party under their brand without the authorization of the brand owner. Although the sale of counterfeit goods is not an unfamiliar battle that our economy has faced, the global pandemic has sadly caused an influx in the sale of counterfeit goods.
Eliminating counterfeit goods in South Africa is essential to our economy. The consequences of not acting against the sale of such goods result in a loss in sales of genuine goods and brands. Our country implemented effective counterfeit laws through our Counterfeit Goods Act 37 of 1997. The Act aims to afford protection to intellectual property owners that have registered trademarks or unregistered but well-known trademarks. Dealing in counterfeit goods can be described as the manufacturing or producing of trademarked goods for non-private or domestic use. It can further be described as the selling, leasing or exchanging of trademarked goods without the authorization of the trademark owner.
The remedies available to the intellectual property owners that identify the trade in counterfeit goods are to request the assistance of the Department of Trade and Industry, whereby the department shall appoint an inspector to lodge an investigation, should it be found that there has been an infringement on their intellectual rights, the trademark owner can request the assistance of the South African Police Service for criminal action to be taken against the offenders.
An intellectual property owner may also protect his brand by way of applying to the Department of Customs and Excise to record such intellectual property goods on its customs watch database. Customs will be alerted to identify and seize suspect counterfeit goods that may be imported or exported through all South African borders.
The other remedy available to the intellectual property owner would be to institute a civil action against the offender and request a Court order for the Sheriff of the Court to confiscate and seize all counterfeit goods from the offenders.
Trade in counterfeit goods should not be taken lightly by offenders, as the penalty for first offenders can be a fine of up to R 5 000.00 per item or 3 years imprisonment. The penalty for repeat offenders can be a fine of up to R10 000.00 per item or 5 years imprisonment.
If you consider starting your own business, please be mindful of the trademark rights of the goods that you intend to sell. Should you require any assistance about trademark rights do not hesitate to contact us.
Charne Sebonka
charne@bbplaw.attorney
Associate
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