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Counterfeit Goods Act, 1997 (Act No. 37 of 1997)

1. Definitions

 

(1) In this Act, unless inconsistent with the context—

 

"act of dealing in counterfeit goods"

means any act or conduct referred to in section 2(1);

 

"apply to",

with reference to any goods, means use upon or in physical or other relation to any goods, and, unless clearly inappropriate, includes to embody or incorporate in any goods;

 

"complainant"

means a person who, in terms of section 3(1), is entitled to lay a complaint contemplated in that section and who has laid such a complaint;

 

"counterfeiting"—

(a) means, without the authority of the owner of any intellectual property right subsisting in the Republic in respect of protected goods, the manufacturing, producing or making, whether in the Republic or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are substantially identical copies of the protected goods;
(b) means, without the authority of the owner of any intellectual property right subsisting in the Republic in respect of protected goods, manufacturing, producing or making, or applying to goods, whether in the Republic or elsewhere, the subject matter of that intellectual property right, or a colourable imitation thereof so that the other goods are calculated to be confused with or to be taken as being the protected goods of the said owner or any goods manufactured, produced or made under his or her licence; or
(c) where, by a notice under section 15 of the Merchandise Marks Act, 1941 (Act No. 17 of 1941), the use of a particular mark in relation to goods, except such use by a person specified in the notice, has been prohibited, means, without the authority of the specified person, making or applying that mark to goods, whether in the Republic or elsewhere.

However, the relevant act of counterfeiting must also have infringed the intellectual property right in question;

 

"counterfeit goods"

means goods that are the result of counterfeiting, and includes any means used for purposes of counterfeiting;

 

"counterfeit goods depot"

means a place designated under section 23 to be a counterfeit goods depot, and includes any place deemed by section 7(1)(c) to be a counterfeit goods depot;

 

"document"

includes a tape recording, a photograph and any electronic or magnetic or other medium on, in, or by means or by way of which, images, sound, data or information may be stored, and “documentary” will be construed accordingly;

 

"exporter"

includes any person who, at the relevant time—

(a) is the owner or is in control or possession of any goods exported or to be exported from the Republic;
(b) carries the risk for any goods so exported or to be so exported;
(c) represents that or acts as if he or she is the exporter or owner of any goods so exported or to be so exported;
(d) actually takes or attempts to take any goods from the Republic;
(e) has a beneficial interest, in any manner or of any nature whatsoever, in any goods so exported or to be so exported;
(f) acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e) of this definition,

and, in relation to imported goods destined for exportation from the Republic, includes the manufacturer, producer, maker, supplier or shipper of those goods or any person inside or outside the Republic representing or acting on behalf of such a manufacturer, producer, maker, supplier or shipper. "Export" and "exportation" will be construed in accordance with the preceding provisions of this definition;

 

"importer"

incIudes any person who, at the relevant time—

(a)        is the owner or is in control or possession of any goods imported or to be imported into the Republic;

(b)        carries the risk for any goods so imported or to be so imported;

(c)        represents that or acts as if he or she is the importer or owner of any goods so imported or to be so imported;

(d)        actually brings or attempts to bring any goods into the Republic;

(e)        has a beneficial interest, in any manner or of any nature whatsoever, in any goods so imported or to be so imported;

(f)        acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e) of this definition,

and "import" and "importation" will be construed accordingly;

 

"inspector"

means any person who under or by virtue of section 22 has been appointed as or designated to be an inspector for the purposes of this Act, as well as—

(a) any police official as defined in section 1(1) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), holding the rank of sergeant or a higher rank;
(b) the Commissioner for Customs and Excise and any official contemplated in section 15(9), in performing their functions in the circumstances contemplated in section 15(4);

 

"intellectual property right"—

(a) means the rights in respect of a trade mark conferred by the Trade Marks Act, 1993 (Act No. 194 of 1993) and includes rights in respect of a trade mark contemplated in section 35 of that Act;
[Paragraph (a) amended by section 1 of the Counterfeit Goods Amendment Act, 2001.]
(b) means the copyright in any work in terms of the Copyright Act, 1978 (Act No. 98 of 1978);
(c) in the case where, by a notice issued under section 15 of the Merchandise Marks Act 1941, the use of a particular mark in relation to goods, except such use by a person specified in the notice, has been prohibited, means the concomitant exclusive right of that specified person so to use that mark;

 

"Minister"

means the Minister of Trade and Industry;

 

"owner",

in relation to an intellectual property right, includes a person who has the capacity in law to enforce the intellectual property right in his or her own name;

 

"package" or "packaging"

means any container, wrapping or outer cover and the contents thereof, or any bundle or single piece in the case of unpacked goods, and, when used as a verb, has a corresponding meaning;

 

"prescribed"

means prescribed by regulation under this Act;

 

"protected goods"

means—

(a) goods featuring, bearing, embodying or incorporating the subject matter of an intellectual property right with the authority of the owner of that intellectual property right, or goods to which that subject matter has been applied by that owner or with his or her authority;
(b) any particular class or kind of goods which, in law, may feature, bear, embody or incorporate the subject matter of an intellectual property right only with the authority of the owner of that intellectual property right, or to which that subject matter may in law be applied, only by that owner or with his or her authority, but which has not yet been manufactured, produced or made, or to which that subject matter has not yet been applied, with the authority of or by that owner (whichever is applicable);

 

"this Act"

includes any regulation made under this Act;

 

"tools"

includes machinery; and

 

"vehicle"

includes any motor car, van, truck, trailer, caravan, cart, barrow, train, aircraft, ship, boat or other vessel, and any other vehicle, craft or means of conveyance of any kind whatsoever, whether self-propelled or not, as well as any pack animal.

 

(2) Without derogating from the meanings of the words "place", "premises" and "vehicle", and unless clearly inappropriate, any reference in this Act—
(a) to any place or premises, must be construed as a reference also to any freight container, irrespective of its size, at, on or in the place or premises;
(b) to any vehicle, must be construed as a reference also to such a freight container on or in the vehicle.