Die beweging van 'n gekommersialiseerde karakter in geselekteerde jurisdiksies

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 un-authorised 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.