Question 1
LEGAL MEMORANDUM
To:
From:
RE: Legal Memorandum on Variation of Supply Agreement Between All Goods
Supplied (Pty) Limited and Dot Distributions (Pty) Limited
Date: 13 May 2024
Statement of facts
On 16 February 2024, All Goods and Dot Distributions entered into a written supply
of goods agreement. The agreement stipulated that All Goods would supply Dot
Distributions with a specified quantity of goods monthly, with payment due on the
30th of each month. A clause in the agreement expressly stated that any variation to
the agreement must be reduced to writing and signed by both parties.1
Due to financial constraints Dot Distributions informed All Goods via email that they
could no longer afford the goods at the agreed-upon price and requested a 5%
reduction. Tom Stewart of All Goods responded via email, agreeing to the price
reduction. However, three months later, All Goods notified Dot Distributions that the
supply agreement would revert to the original agreed-upon terms.2
Legal Analysis
The fundamental principle governing contract law is that a contract is formed by the
mutual assent of the parties to the terms of the agreement. In this case, the supply
agreement between All Goods and Dot Distributions is subject to the express clause
requiring variations to be in writing and signed by both parties.3
.
Section 11 of the Electronic Communications and Transactions Act 25 of 2002 of
South Africa recognizes the validity of contracts concluded through electronic
communication, including emails. As per the Act, agreements formed through email
exchanges may be legally enforceable, and electronic communications like emails
might fulfil the criteria of a "written" communication.4
1
The IIE, E-Commerce law assignment 2024, the IIE: Unpublished.
2
The IIE, E-Commerce law assignment 2024, the IIE: Unpublished.
3
Hutchison, D, Pretorius, C (ed) The Law of Contract in South Africa 4th ed (2022). Oxford University
Press: Cape Town.
4
Electronic Communications and Transactions Act 25 of 2002.
Spring Forest Trading 599 CC v. Wilberry (Pty) Ltd. t/a Ecowash and Others is the
case in question. The High Court came to the conclusion that the parties' emails
simply demonstrated their aimless conversations rather than their intention to
withdraw their agreements. Furthermore, it was not made clear by either party that
an email exchange may end their agreement. Therefore, it determined that the
emails were exempt from the Act and that the appellant's purported cancellation of
the agreements was null and void due to noncompliance with the provisions of their
written agreements. The order was maintained by the Durban High Court. Spring
Forest then filed an appeal with the SCA. According to the court's decision, judges
have frequently avoided undue formality when it comes to signatures by adopting a
pragmatic approach. It was said that instead of emphasising the exact form of the
signature, judges had to take into account whether the signing technique serves to
verify the signatory's identity.5
In light of the above legal principles and relevant case law, the exchange of emails
between Bongani Zulu and Tom Stewart regarding the 5% price reduction could
constitute a valid variation of the supply agreement.6 The parties' correspondence
demonstrates a clear intent to modify the terms of the agreement, and while the
contract stipulated a formal requirement for variations, the emails may satisfy the
statutory and common law standards for contract formation.
Summary and recommendation
In my legal opinion that the agreed-upon 5% price reduction may be deemed a valid
variation of the supply agreement between All Goods and Dot Distributions. The
parties conduct and communication via email sufficiently indicate their mutual assent
to the modified terms, regardless of the absence of a formal written and signed
document.
After analysing and discussing the various factors, I recommend advising Bongani
Zulu that the price reduction agreed upon via email correspondence is likely
enforceable and constitutes a valid variation of the existing supply agreement.
However, it is essential for the parties to abide by the terms of the variation going
forward and ensure that any future modifications are formally documented as per the
agreement's requirements.
Yours sincerely,
Smith and Partners
Question 2
A patent is the property right that an invention is granted by a governing body. In
return for full disclosure of the innovation, this grant gives the inventor exclusive
rights to the patented method, design, or invention for a predetermined amount of
time. Innovations are shielded by patents.
5
Spring Forest Trading 599 CC v. Wilberry (Pty) Ltd. t/a Ecowash and Another (725/13 [2014]
ZASCA.
6
Hutchison, D, Pretorius, C (ed) The Law of Contract in South Africa 4th ed (2022).
What may or may not be patented?
Innovative ideas that are new, beneficial, and obscure can usually be protected by
patent law. Patent protection may be available for inventions that fit into one of the
following categories: manufactures, machines, methods, or compounds. However,
because they are prohibited from patent protection, laws of nature, natural events,
abstract concepts, and specific kinds of software might not be eligible.7
The requirements to register a patent
Patent law establishes certain requirements that an innovation must fulfil in order to
be registered. These requirements often include novelty, the product that needs to
be patented is not art that is part of the state. Non-obviousness, which demands that
the invention take an inventive step beyond what is already known in the field,
novelty, which states that the invention cannot have been made public prior to the
patent application, and industrial applicability, which states that the invention must be
able to be produced or used in an industry. 8
Whether a mobile application may or may not be patented?
The patentability of mobile applications is a complex and evolving area of intellectual
property law. Mobile applications can potentially be patented if they meet the criteria
of patentability, such as being novel, non-obvious, and useful. In recent years, there
has been a growing trend of patent applications related to mobile applications,
particularly in the technology sector.9
The determination of the innovative aspect of a mobile application is a crucial issue
in establishing its patentability. Often, a mobile application's unique functionality or
technological aspects rather than the application itself may qualify for patent
protection. For example, if the mobile application satisfies patent law requirements, a
novel algorithm, data processing technique, user interface design, or inventive
functionality may be patentable.10
Small and medium-sized businesses (SMEs) face particular obstacles when it comes
to the patenting of technologies, particularly those pertaining to mobile applications.
The cost and complexity of the patent application procedure can be major barriers
for SMEs, especially when seeking for international patent protection. Additionally,
since mobile technology is continually evolving, it could be challenging to
demonstrate that a mobile application is distinct and not readily apparent—
particularly for smaller businesses with limited resources for research and
development.
7
Van der Merwe, DP (ed). 2021 Information and Communications Technology Law. 3rd ed.
LexisNexis: Durban.
8
Van der Merwe, DP (ed). 2021 Information and Communications Technology Law. 3rd ed.
LexisNexis: Durban.45
9
Danie, P “Can I protect my mobile app idea?” 2015 De Rebus website at
[Link] [Accessed 11 May 2024].
10
Danie, P “Can I protect my mobile app idea?” 2015 De Rebus website at
[Link] [Accessed 11 May 2024].
In conclusion, the claim that "You may patent a mobile application" is not inherently
true or false rather, a mobile application's patentability is dependent on a number of
variables, such as the unique features that make it innovative, the formalities
involved in registering a patent, and the way that intellectual property law is
developing. In order to determine the possibility of successfully getting a patent,
developers and inventors wishing to patent a mobile application should carefully
consider the distinctive aspects of their creation and meet with intellectual property-
focused attorneys. The patentability of mobile applications presents both
opportunities and challenges in the rapidly evolving digital environment, highlighting
the importance of understanding the nuances of patent law and the specific
requirements for protecting software innovations in the mobile application space.11
11
WIPO, “Intellectual Property Rights For Mobile Applications” 2023 website at
[Link] [Accessed 10 May 2024].
Question 3
RE: Legal Advice on Trademark Infringement and Registration
I hope this letter finds you well. I have carefully reviewed the concerns you raised
regarding potential trademark infringement and the registration of your company's
name as a trademark. In light of the information provided, please find below my legal
advice on the matter.
Trademark Infringement:
After analyzing the various factors presented, it is evident that you committed a
trademark [Link] inclusion of the names of well-known travel firms as
competitors in the meta-tags of your website may give rise to trademark infringement
problems. A brand's identity and reputation in the marketplace are safeguarded by
trademarks, which are priceless assets. Unauthorised use of a competitors
registered trademark in your meta-tags may be considered trademark infringement.
When a well-known mark is registered in connection with the same or comparable
goods or services, it is protected against being registered as a trademark as that
would be confusing or deceptive due to its replication, imitation, or translation.
Section 35 of the Trade Marks Act forbids the unauthorised use of an unregistered
mark that is well-known in South Africa.12 The unauthorised use of a
trademark in meta-tags might cause confusion for consumers and be interpreted as
an attempt to capitalize on the goodwill and reputation of well-known trademarks. 13
Using the name of the competitors company, New Travel Agency, in AdWords for
your website can also cause similar issues. Through usage in commerce, firms can
assert common law rights over unregistered marks, even if the competitor's name is
not a registered trademark. Unauthorised use of a rival's name in AdWords may give
rise to claims of passing off or unfair competition.14
In order to minimise the risks of trademark infringement, I recommend refraining from
using your competitors' names in your website meta-tags and AdWords. Instead,
focus on developing unique and distinctive keywords and content that highlight the
value proposition of TravellingStars without relying on third-party trademarks.
Registration of Trademarks:
In South Africa, you can obtain the exclusive right to use a trademark in connection
with your products and services by registering it with the Companies and Intellectual
Property Commission (CIPC). It is crucial to perform a thorough investigation to
ascertain TravellingStars' registrability as a trademark in order to make sure that no
conflicting marks are currently in use or have already been registered that could
impede the registration process. It was indicated that you have chosen to register
12
Trade Marks Act 194 of 1993.
13
Van der Merwe, DP (ed). 2021 Information and Communications Technology Law. 3rd ed.
LexisNexis: Durban.256
14
Van der Merwe, DP (ed). 2021 Information and Communications Technology Law. 3rd ed.
LexisNexis: Durban.268.
both your domain name, [Link], and a trademark for
TravellingStars. Getting your company name registered as a trademark will help
safeguard your brand and stop competitors from using it too similar.15
Certain criteria must be met for a trademark to be registered, such as being unique,
not descriptive, and not generic.16 You should be able to successfully complete the
registration process as long as TravellingStars satisfies these requirements and is
not confusingly similar to already-registered trademarks.
In conclusion, I highly recommend taking proactive steps to safeguard your brand
and intellectual property rights. Avoiding the unauthorized use of competitors'
trademarks and focusing on developing your unique brand identity will help position
TravellingStars for success in the competitive travel industry.
Thank you for entrusting us with your legal concerns.
Yours sincerely,
Candidate Attorney
Smith and Partners
15
Van der Merwe, DP (ed). 2021 Information and Communications Technology Law. 3rd ed.
LexisNexis: Durban.
16
Van der Merwe, DP (ed). 2021 Information and Communications Technology Law. 3rd ed.
LexisNexis: Durban.249.
Reference list
Books
Van der Merwe, DP (ed). 2021 Information and Communications
Technology Law. 3rd ed. LexisNexis: Durban.
Hutchison, D, Pretorius, C (ed) The Law of Contract in South Africa 4th ed (2022).
Legislation
Electronic Communications and Transactions Act 25 of 2002.
Trade Marks Act 194 of 1993.
Cases
Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and Another (725/13)
[2014] ZASCA 178.
Articles
Danie, P “Can I protect my mobile app idea?” 2015 De Rebus website at
[Link] [Accessed 11 May
2024].
[Link] website at
[Link]
[Accessed at 10 May 2024].
WIPO, “Intellectual Property Rights For Mobile Applications” 2023 website at
[Link] [Accessed 10 May 2024].