LML PORTFOLIO October/ November 100% pass

LML4802 (Competition and Trademarks Law) October November 2023 portfolio 100% pass QUESTION 1 1.1 Discovery Ltd intends to acquire Netcare Ltd before the implementation of the National Health Insurance as proposed by the National Health Act 61 of 2003. Conduct focused research on the companies guided by various provisions for merger control. Thereafter, identify and classify the type of the merger, apply the relevant factors considered for evaluation of the merger and make a recommendation in relation to the merger as the competition commission. You need not discuss the procedure and notification provisions of merger regulation. (10) 1.2 Uni Pharma (Uni) is a large pharmaceutical retailer that sources its products from Mega Pharma Manufacturers (Mega), one of the largest pharmaceutical manufacturers in South Africa with an 80% market share. When South Africa experienced its first case of a COVID 19 pandemic infection, Uni, Mega and other pharmaceutical manufacturers and retailers witnessed a vast increase in demand for facial masks, sanitizers and disinfectants (these products). As a result, South Africa experienced a shortage of these products. Mega had to increase its production to meet the demand from pharmacies. At the same time, Uni had to procure more stock to meet the demand from consumers. To ensure the continued supply of these products to consumers, Uni increased the prices of these products by 300%. In addition, Uni, with a market share of 40%, approached other pharmaceutical retailers, and an agreement was reached that they would all charge the same price for these products. Many consumers were disgruntled by the increase, as they could not afford these products when they were so needed. 1.2.1 You are the principal investigator appointed by the Competition Commission to investigate Uni’s conduct. Write a report wherein you outline in detail the possible provisions of the Competition Act 89 of 1998 which have been contravened by Uni, whether any existing grounds of justification and any sanctions that may be imposed by the Competition Commission. (15) 1.2.2 Upon investigation, it transpires that Mega has a supply agreement with Uni, in which it instructed Uni to increase its prices by 300%. The agreement provided that if Uni failed to increase its prices accordingly, Mega would stop supplying any of its products to Uni. As a result, Uni complied with Mega’s request. Write a report wherein you discuss whether Uni and Mega’s supply agreement contravenes the provisions of the Competition Act 89 of 1998 and any defence that may be available to either of the parties in terms of this Act. (10) [35] QUESTION 2 2.1 An international clothing designer, James Turner, designs clothing under the label HENRI OF HOLLYWOOD. He is famous as the creator of evening gowns worn by celebrities at the OSCAR and other award ceremonies. His creations appear in television shows and in print publications worldwide and are eagerly viewed and discussed by the public. Ricky, a South African designer, lauches his new fashion range in South Africa and calls it HENDRIK OF HOLLYWOOD. Advise James Turner whether there are any grounds on which he can institute an action against Ricky under the private law of competition. Give full reasons for your answer and refer to decided cases. (10) 2.2 In the promotional advertising for Ricky’s local range of clothing, Ricky states that his garments are the original designs that appear on the OSCAR red carpet and that James Turner has copied these designs from him. James Turner states that these allegations are completely false. Advise James Turner whether there are any grounds on which he can institute an action against Ricky under the private law of competition. Give full reasons for your answer and refer to decided cases. (10) 2.2 Discuss the application of the “unclean hands” doctrine briefly in passing off cases and refer to relevant South African case law. (5) [25] QUESTION 3 3.1 House of Burgers, a company registered in the UK, is a well-known multinational fast-food chain which is mainly known for its healthy burger brand ‘Hwise’. House of Burgers has more than fifty outlets in South Africa, where it has been operating for more than 30 years. Hwise has been registered as a trademark in South Africa for 30 years in classes 29 and 30 in respect of hamburger components . Hwise trademark expired in December 2021 and was not renewed. Due to the outbreak of COVID 19 and the extended lockdown in September 2020, House of Burgers experienced financial challenges and eventually exited the South African market in November 2021. In December 2021, Mayibuye Burgers, a South African company, started selling a range of healthy burgers under the mark ‘Hwise’. Health-conscious South Africans who were customers of House of Burger continued to buy what they believed to be their favourite healthy burgers. 3.1.1 Advise if there are any grounds on which the House of Burgers can institute a claim against Mayibuye Burgers in terms of the Trade Marks Act 194 of 1993. (10) 3.1.2 Would your answer in 3.1.1 above differ if Hwise was never registered as a trademark in South Africa? (10) [20] QUESTION 4 Osaka Inc, a Japanese manufacturer of electrical equipment, is the proprietor in South Africa of the registered trade mark BRIGHTSPARK. The trade mark BRIGHTSPARK is registered in respect of electrical instruments and apparatus in class 11. Osaka Inc markets its products worldwide, including South Africa, through a chain of national distributors. The BRIGHTSPARK products are of high quality and are the most popular brand of electric equipment sold in South Africa. Osaka Inc becomes aware that Hendrik, a local manufacturer, is marketing a range of electrical household appliances using the trade mark LIGHTSPARK and that he intends to register the mark in class 11 in relation to domestic electrical appliances. Osaka Inc also learns that a Korean Company, Ono Ltd, has begun to market BRIGHTSPARK cleaning preparations and has applied to register this mark in South Africa, in class 3, in respect of cleaning preparations. Discuss the following with reference to the Trade Marks Act and decided cases: 4.1 Advise Osaka Inc whether it can prevent Hendrik from using the LIGHTSPARK mark in relation to Hendrik’s electrical household appliances. (10) 4.2 Advise Osaka Inc whether it can oppose the registration of the mark LIGHTSPARK in relation to electrical household appliances in class 11. (5) 4.3 Advise Osaka whether he can oppose the registration of Ono’s mark BRIGHTSPARK in relation to cleaning preparations in class 3.