Thursday, 17 December 2009

Nothing reconciliatory about this costs order!

Yesterday in South Africa was the Day of Reconciliation, and I spent it trying to reconcile teaching and research duties.

I had two pleasant surprises – the first a wonderful article by fellow blogger Jeremy on IP research, which appears in the new WIPO Journal. The full journal is available here and Jeremy’s article starts on p138. It should be compulsory reading for all post-graduate students and anyone else who writes on IP matters.

The second was an equally pleasant surprise. I was in Cape Town two weeks ago and got lost looking for a business in Century City, so did not feel very positive about reading the recent decision in which it featured. But the Supreme Court of Appeal judgment written by Harms DJP, Century City Apartments Property Services CC and Another v Century City Property Owners Association, available here, is enormously instructive. The paragraphs dealing with the validity of marks consisting of geographical names in previous and current UK and SA legislation, set out the law with great clarity, while the different requirements in the two jurisdictions for blameworthy conduct on the part of the proprietor is also most useful. Both of these deserve more detailed study and discussion than I can give here. However, the part dealing with costs will raise a smile (albeit wry) from all. The fun bit follows:
[56] …. Schutz JA once began a judgment with these words:
‘A record of 720 pages and heads of argument totalling 57 pages have been placed before us in order to allow us to decide whether the wrapping of its coconut biscuits used by one manufacturer passes itself off as the wrapping of another manufacturer of similar biscuits.’ (Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (SCA) para 1.) Not to be outshone the parties in this case presented us with a record of 1,557 pages. Trade mark cases have developed into paper wars in the apparent belief that the weight of the papers of the respective parties determines the merits or that the threat of cost orders would force the one or other party to capitulate. …..
[57] … Practitioners apparently also believe that the more they burden this court with paper the better for them. Perhaps they hope that the court will locate a winning fact that they have missed. Practitioners are paid to determine what their case is about and to make a value judgment about what is required and what not; and not only to photocopy documents. This should serve as a final warning, also for counsel who tell us to read unnecessary paper.
What a judgment!

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