The irresistible force of freedom of speech meets the immovable object: trade mark law in South Africa

Legal context. The right of freedom of expression is a fundamentalright entrenched in the Bill of Rights incorporated in the SouthAfrican Constitution. While intellectual property rights donot enjoy this status, they are internationally recognised rightsgranted by a law of general application and may thus in termsof the Constitution limit the fundamental rights protected inthe Bill of Rights, and more particularly the right of freedomof expression. Where the enforcement of trade mark rights comes into conflictwith the right of freedom of expression, the two rights mustbe weighed up against one another and the competing interestsof the owner of the trade mark against the claim of expressionof a user without permission must be considered. The departurepoint of the weighing up process is that neither right is superiorto the other. Key points. This article discusses an action brought by SabmarkInternational, which claimed that Laugh It Off Promotions CCinfringed its registered trade mark BLACK LABEL in respect ofbeer by using a corruption of this mark with strong politicalundertones as ornamentation on T-shirts sold by it. It was claimedthat the offending use diluted Sabmark's registered trade mark.In an appeal, the Constitutional Court rejected the claim onthe basis that Sabmark had not shown that the offending usewas likely to cause economic damage to it. Practical significance. The case in effect equated trade markrights with rights enshrined in the Bill of Rights and thusgave important recognition to intellectual property rights.It created a precedent in intellectual property law, if notin South African law in general, in that the constitutionalcourt overruled a decision of the Supreme Court of Appeal (SCA)and in effect ruled that the SCA had not interpreted the relevantprovision of the Trade Marks Act correctly.     

Rule of law v. rule of man: The search for the golden zigzag between conflicting fundamental values

Although most theorists from Aristotle to K. Culp Davis have recognized the need for law and discretion in any government, there has been very little analysis of the values protected by rule of law or the values preserved by rule of man (discretion). Nor has there been a systematic analysis of the relationship between these values. This article suggests that the law/discretion conflict is an essential and potentially productive conflict because both law and discretion protect fundamental, but limited, values which are essential for achievement of justice. Therefore, it is of the essence to understand the values underlying both law and discretion.     

Sea Grant — A technology transfer model for the marine field

A network of 29 Sea Grant Programs now operate in almost all of the 34 eligible coastal and Great Lake states, the Commonwealth of Puerto Rico, and the U.S. Island Territories. Operating in response to current needs and opportunities by applying faculty, research staff and student expertise, Sea Grant Programs have developed many new systems, processes, policy and legal studies, and technologies. These have been effectively transferred to user groups, including major industries, businesses, government agencies, citizen groups and individuals. Many examples of successful technology development and transfer are discussed. Some examples are the hydrodynamic modeling of transport and dispersion of pollutants in large definable water bodies, the demonstration of a prototype machine for skinning the Spiny Dogfish Shark and application of vibration studies to reduce wave response of offshore structures. The examples demonstrate the viability and effectiveness of the Sea Grant concept.