It is correct that section 2 of the Maintenance and Promotion of Competition Act excludes from the provisions of the Act any right acquired under the Trade Marks Act, Designs Act, Patent Act and Copyright Act. However, in terms of section 2(2) of the Competition Act, the exclusion shall be construed so that any person shall not retain or be granted any right of enhancing or maintaining prices or restricting competition directly or indirectly by way of a restrictive practice as defined in the Act.
It is evident, therefore, that although the statutory rights are in fact placed in a category separate from similar common law intellectual property rights, the limitation of section 2(2) applies to the statutory rights, i.e. they may not be used in a manner to constitute a restrictive practice.
It should be understood that the Maintenance and Promotion of Competition Act is intended to promote free and fair competition, and such is not perceived to be contrary to the spirit of Article 40 of the TRIPS Agreement. Although an exception is made in relation to statutory intellectual property rights, abuse of such rights will not be tolerated, in accordance with section 2(2) of the Act.
