Latest updates

What to do when your product is copied
KISCH IP
  • Intellectual Property
  • South Africa
  • 15 July 2019

South Africa has seen a dramatic rise in entrepreneurial activity, with many seeking to launch new products in the marketplace. However, with the success of a product comes the risk of the idea being copied and advantage being taken of the already established route to market, thereby affecting the original product's sales and brand. Therefore, any party that creates or legitimately distributes a product that they believe will be well received must take the appropriate steps to protect it.

Ship arrests: revisiting 'genuine and reasonable' need for security
Bowmans
  • Shipping & Transport
  • South Africa
  • 26 June 2019

The Supreme Court of Appeal recently took a hard line regarding an arresting party and delivered a salutary message to pay close attention to establishing a plausible link between the factors justifying a 'genuine and reasonable' need for security and the particular facts and circumstances of the party against which an arrest order is sought. The judgment is a cautionary tale for arresting parties that seek to rely on generalised allegations.

Who can apply for a patent? Applicant versus inventor
KISCH IP
  • Intellectual Property
  • South Africa
  • 10 June 2019

A granted patent is a highly lucrative commercial tool in the hands of the patent applicant. However, inventors are not necessarily entitled to apply for a patent, especially in employment contexts. Inventors are therefore advised to consult with a patent attorney when they are uncertain whether an invention falls within the scope and course of their employment. It is further advisable to enter into negotiations with employers regarding compensation for the invention.

Patenting strategy: when to patent?
KISCH IP
  • Intellectual Property
  • South Africa
  • 03 June 2019

Patenting inventions is notoriously expensive; however, the benefits of having exclusive rights over an invention far exceed any initial patenting costs. The problem remains that a decision on whether to patent an invention must often be made long before the invention's commercial potential can be judged. As such, it is often difficult to know what to patent.

Timing of tax on gift cards
  • Corporate Tax
  • South Africa
  • 31 May 2019

The Cape Town Tax Court recently addressed the timing of income tax in relation to retailer gift cards. The court found that a taxpayer had been correct to have included its receipts for unredeemed gift cards as part of its gross income before the Consumer Protection Act came into force. During the case, the counsel for the commissioner of the South African Revenue Service raised an interesting argument – namely, that the act was introduced to protect consumers' rights and not to change the incidence of tax.

Overview of registered designs: what you need to know
KISCH IP
  • Intellectual Property
  • South Africa
  • 27 May 2019

The Designs Act (195/1993) gives the proprietor of a registered design control over it for a limited period. This control is not aimed at protecting an underlying concept, but rather at the appearance of a product embodying the design. This article discusses (among other things) proprietor rights, the difference between aesthetic and functional designs and the costs involved in registering a design.

Further amendments to VAT e-services regulations enter into force
  • Corporate Tax
  • South Africa
  • 24 May 2019

Revised regulations clarifying the e-services supplied by foreign suppliers to South African consumers which are subject to value added tax were proposed in 2018, which significantly broadened the scope of e-services. In the 2019 Budget Review, the minister of finance announced that further amendments would be made to the e-services regulations to address certain oversights. The regulations came into effect on 1 April 2019.

How a 'House of Bonang' can house its intellectual property
KISCH IP
  • Intellectual Property
  • South Africa
  • 20 May 2019

Many celebrities extend their brands by venturing into various industries, such as Bonang Matheba who recently launched her own range of sparkling wine. While these endeavours can work well, they also create opportunities for individuals to infringe on the IP rights embedded in celebrities' respective ventures. As such, there are a number of IP rights that celebrities can use to maintain control over their brands and regulate how they are used by others.

Preference share funding structures: overview of Companies Act and Income Tax Act provisions
  • Corporate Tax
  • South Africa
  • 17 May 2019

Preference share funding structures are often preferred by banks and other financial institutions because dividends received by certain holders – including banks and other juristic persons – are exempt from income tax. As such, the provisions of the Companies Act and the Income Tax Act must be considered in the context of the outcome which a company wishes to achieve before it settles the terms of a preference share funding structure.

New breeding techniques and regulation of genetically modified organisms
ENSafrica
  • Healthcare & Life Sciences
  • South Africa
  • 15 May 2019

A recent European Court of Justice ruling on the status of organisms obtained by new breeding techniques as genetically modified organisms (GMOs) has again brought the scope of the South African GMOs Act into question. The difficulty with regulating organisms created through such techniques is that these organisms may be indistinguishable from organisms which have naturally evolved.

How to protect new plant varieties
KISCH IP
  • Intellectual Property
  • South Africa
  • 13 May 2019

South Africa has no plant patent system, as the Patents Act states that a patent will not be granted for any variety of plant. Therefore, new plant varieties are protected exclusively under the Plant Breeders' Rights Act. However, genetically modified plants could be patentable subject matter under the Patents Act, as they are not strictly classed as new varieties of plant.

Creature of statute: decision about Tax Court's power to increase understatement penalties
  • Corporate Tax
  • South Africa
  • 10 May 2019

The Supreme Court of Appeal recently ruled on the South African Revenue Service's (SARS's) right to impose understatement penalties on a taxpayer and the quantum thereof. The judgment will be welcomed by taxpayers involved in disputes with SARS regarding understatement penalties, as it reaffirms that the Tax Court cannot, of its own volition, increase an understatement penalty.

Patentability of biotechnological inventions
KISCH IP
  • Intellectual Property
  • South Africa
  • 06 May 2019

An element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention. However, when considering the patenting of a life sciences invention in South Africa, a number of questions should be addressed in relation to, among other things, the invention's novelty, inventiveness and usefulness.

Proposed amendments regarding dividend stripping rules in 2019 Budget: further reflection
  • Corporate Tax
  • South Africa
  • 03 May 2019

This article delves into the National Treasury's proposal to address abusive arrangements aimed at avoiding the anti-dividend stripping provisions in the Income Tax Act. It first discusses the history of the amendments, followed by an examination of the anti-dividend stripping provisions and a brief discussion of the National Treasury's proposal in the 2019 Budget.

Rights holder protection against anti-counterfeiting
KISCH IP
  • Intellectual Property
  • South Africa
  • 29 April 2019

The Counterfeit Goods Act was proclaimed to enforce and protect IP rights holders against counterfeiting. The act enables certain IP rights holders and other persons with an interest in protected goods – including licensees, importers, exporters, distributors and duly authorised attorneys and agents – to act speedily and efficiently against persons involved in counterfeiting on either a criminal or civil level.

Another win for the youth: proposed extension of employment tax incentive
  • Corporate Tax
  • South Africa
  • 26 April 2019

The historically high level of unemployment among South Africa's youth has led to the introduction of various tax incentives and benefits which aim to encourage the employment and training of such persons. Among these is the employment tax incentive scheme. A review of the scheme has demonstrated positive outcomes, including a significant increase in the employment growth rate and the number of employees in firms that have claimed the employment tax incentive.

Royalties, currency conversion and taxes: what rights holders need to know
KISCH IP
  • Intellectual Property
  • South Africa
  • 22 April 2019

South Africa has significant exchange control regulations in place that restrict and require approval for payments in international IP licensing relationships. Typically, if an IP right in issue has been commercialised or if its commercialisation is imminent, exchange control requires an appropriately motivated valuation substantiating the price to be furnished.

Company law versus income tax law: amalgamations now regularised
  • Corporate Tax
  • South Africa
  • 19 April 2019

One of the amendments proposed by Budget 2019 aims to reconcile the incongruency that exists between South African company law and income tax law with regard to the deregistration or liquidation of companies that are involved in amalgamation transactions. The amendment is a welcome change, as it will ensure that the Companies Act and the Income Tax Act operate in conjunction with, and in support of, each other.

Domestic treasury management companies – alignment of tax and exchange control provisions
  • Corporate Tax
  • South Africa
  • 12 April 2019

When the domestic treasury management company (DTMC) regime came into effect in 2013, a 'DTMC' was defined in the Income Tax Act as a company that is incorporated or deemed to be incorporated in South Africa. The 2019 Budget explains that in 2017 the Income Tax Act was amended to remove this requirement, which conflicts with the South African Reserve Bank's requirements, prompting calls for reassessment.

Patent law overview
KISCH IP
  • Intellectual Property
  • South Africa
  • 08 April 2019

A patent grants the holder an exclusive right or monopoly to exclude third parties from exploiting the patented invention for a limited period in a specific territory. This article discusses the nuances of South African law in this regard, including with regard to patentable inventions, patent longevity and the requirements for patent specifications.