Section 10 of the Counterfeit Goods Act has a provision giving effect to the principle of Article 59 of the TRIPS Agreement in regard to re-exportation of counterfeit trademark goods. Section 10(2) places a prohibition, inter alia, on the exportation of imported goods in an unaltered state where the goods, inter alia, bear a trademark or a colourable imitation thereof so as to be calculated to be confused with or taken as being protected goods, unless a court, on goods cause shown, orders otherwise.
The Courts have not yet given an interpretation of this section, to indicate what will be regarded as constituting good cause.
Section 4 of the Merchandise Marks Act No. 17 of 1941 also has a provision giving effect to the principle regarding re-exportation of counterfeit trademark goods contained in Article 59 of the TRIPS Agreement. Section 14(15) provides that where imported goods, which are destined for exportation, were seized and held by a court to be the subject of a contravention under the Act (e.g. by reason of the application of a false trade description), the Court shall not allow the goods to be exported in an unaltered state, except if it thinks it fit to allow exportation after due regard to the circumstances regarding the offence.
This provision was inserted into the Merchandise Marks Act by the Intellectual Property Laws Amendment Act No. 38 of 1997, and has not yet been interpreted by our courts.
