Anti-Counterfeiting Law in South Africa

Anti-counterfeiting legal advice is sought out by any person, or entity, whose intellectual property right has been infringed upon. These parties include authorised intellectual property right owners, licensees, importers, exporters, distributors or other authorised agents. The intellectual property rights that are protected by the Counterfeit Goods Act include registered trade marks, copyright, and well-known (yet unregistered) trade marks.

Anti-Counterfeiting Meaning

Anti-counterfeiting prevents individuals from manufacturing or otherwise dealing in unauthorised goods which constitute substantial identical copies of the genuine goods or where the unauthorised goods  bear or incorporate the subject matter of the relevant intellectual property right or a colourable imitation thereof so that the unauthorised goods are calculated to be confused with or taken as being the genuine goods.

Counterfeit goods have been described as constituting “fraudulent imitations” of the genuine goods copied.

Counterfeiting is used to deceive others, whether into believing that the replicated item is an original, or that originates from the same source.

Counterfeiting is constituted when:

• Individuals or entities manufacture counterfeit goods, other than for private or domestic use;
• Individuals or entities otherwise deal in the counterfeit goods (including selling, offering for sale, distributing, importing, exporting and possessing for purposes of trade).

Anti-Counterfeiting Trade Agreement

The Anticounterfeiting Trade Agreement (ACTA) is drafted (proposed) legislation aimed at combating counterfeiting and piracy on a commercial and international scale. The draft agreement was signed by several countries including Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, and the United States. South Africa was not a signatory to this agreement, and the agreement was eventually never signed into force after being rejected by a majority of the European Parliament in 2012.

Anticounterfeiting legislation is enforced separately in the various jurisdictions (countries) in accordance with the legislation in force in the particular country. However, Adams & Adams collaborates with international organisations and law enforcement agencies, e.g. INTERPOL, across various countries to fight counterfeiting on an international scale.

Anti-Counterfeiting Measures

Dealing in counterfeit goods is prevalent in all markets and facets of society. The highest volumes of imported counterfeit goods in South Africa are suspected of entering through Durban harbour and eventually being distributed from Johannesburg.

Numerous factories and manufacturing facilities producing counterfeit goods have been discovered and shut down by Adams & Adams in collaboration with the authorities. Many of these illegal manufacturing facilities were based in smaller rural areas and towns.

Adams & Adams make use of several internal investigators to get to the bottom of counterfeiting activities. In addition, Customs and other branches of law enforcement alert Adams & Adams of counterfeiting activities pertaining to the firm’s clients. We, further, have a team monitoring online activities pertaining to dealing in counterfeit goods.

If the unauthorised goods in question constitute substantial identical copies or colourable imitations (calculated to confuse) of the genuine goods and protected IP Rights in question, the goods will be considered as being counterfeit.

Anti-Counterfeiting Legal Assistance

Adams & Adams has one of the largest Anti-Counterfeiting legal teams, consisting of attorneys, as well as other professional and support staff, dedicated to combatting the trade in counterfeit goods in Africa and further abroad.

We are the only firm with internal investigators based across several jurisdictions, dedicated to pro-actively investigating and assisting our clients with effective and sustainable Anti-Counterfeiting measures.

Our team is well informed and equipped to deal with any client queries related to the prevention and detection of counterfeiting as well as the enforcement of legal action across Africa to clamp down on counterfeit goods. For more information, contact us.