Legal issues and challenges

[boxerulez]

Looking at those terms it tells me that if you possess a product that is patented or copyrighted and is in fact fake, you are liable. @Christos
What do you take from that paragraph?

Otherwise I can also just start up a factory making skylines and claim ESG actually stole the idea from me and they are producing counterfeit goods? Thats the point of patent and copyright not so?

 

[Christos]

Looking at those terms it tells me that if you possess a product that is patented or copyrighted and is in fact fake, you are liable. @Christos
What do you take from that paragraph?

I take that the law does in fact frown upon clones if copyrights are in place with SA's trade partners but it's not enforceable as it's not large enough to warrant action.

Not that I care much. To me it makes perfect sense to support authentic manufacturers and avoid clones.
When I was younger I did use clones and I didn't know better but I know better now.

 

[boxerulez]

I take that the law does in fact frown upon clones if copyrights are in place with SA's trade partners but it's not enforceable as it's not large enough to warrant action.

Not that I care much. To me it makes perfect sense to support authentic manufacturers and avoid clones.
When I was younger I did use clones and I didn't know better but I know better now.

So yes, if there is no copyright or patent by the manufacturer, there is no leg for anyone to stand on claiming this is fake or illegal etc.

I hear you on your opinion of clone vs authentic, no problem there.

 

[Christos]

So yes, if there is no copyright or patent by the manufacturer, there is no leg for anyone to stand on claiming this is fake or illegal etc.

I hear you on your opinion of clone vs authentic, no problem there.

Don't take my work for it. Just my interpretation which is not legally binding.

The more important aspect i believe is that our tobacco laws don't include vaping. So either they will very soon or new laws will be passed and we as a community should stand together and hope to have representation and a say when such laws are passed/amended.

 

[Scott]

So what I take from the clone issue is,,

if the original is not copyrighted or patented there is no problem with distributing and selling clones of said products? We need a TL;DR please buddy.

I will reply to your question regarding the failure to register patents or copyright in goods and the subsequent sale of such goods shortly. I want to look at the latest regulations made in terms of the Act to be sure. However, without trying to appear totally ignorant what does TL;DR mean?

 

[boxerulez]

Too Long, Didn't Read

 

[RichJB]

I think the wording we seek is "it is not legal to sell clones, but it is only prosecutable in the event of a product being patented/trademarked/copyrighted and the legal owner of the product making a complaint with the authorities". The authorities might launch their own operations but it's unlikely that vaping would be top of their priorities.

Regarding the tobacco law, I think it is the case in the overwhelming majority of countries that they will have a Tobacco Act (or similar) that regulates tobacco products but not vape gear, considering that the Act would have pre-dated the emergence of vaping. Most seem to be amending the Act to include vape gear rather than writing a separate Act for vaping specifically.

If I was a betting man, I'd say that SA would amend the Tobacco Act to include vape gear, and would then adopt the EU's TPD with perhaps some minor modifications.

 

[MysticNectar]

Thanks you for you time it is appreciated and informative. Looking forward to the next part

 

[Scott]

So what I take from the clone issue is,,

if the original is not copyrighted or patented there is no problem with distributing and selling clones of said products? We need a TL;DR please buddy.

After looking at the Copyright and Patents Acts and regulations again the answer would appear to be yes you can, however, if legal issues were to arise the onus would be on you the seller to show you took all reasonable steps to insure there was no registered and valid patent or copyright. You would also be compelled to disclose to your buyer that the product is not genuine to avoid the common law crime of fraud!

 

[Scott]

I think the wording we seek is "it is not legal to sell clones, but it is only prosecutable in the event of a product being patented/trademarked/copyrighted and the legal owner of the product making a complaint with the authorities". The authorities might launch their own operations but it's unlikely that vaping would be top of their priorities.

Regarding the tobacco law, I think it is the case in the overwhelming majority of countries that they will have a Tobacco Act (or similar) that regulates tobacco products but not vape gear, considering that the Act would have pre-dated the emergence of vaping. Most seem to be amending the Act to include vape gear rather than writing a separate Act for vaping specifically.

If I was a betting man, I'd say that SA would amend the Tobacco Act to include vape gear, and would then adopt the EU's TPD with perhaps some minor modifications.

 

[Scott]

We must not lose sight of the fact that any attempt to regulate the vape industry through legislation will require extensive public debate and consultation with and recomendations from health professionals. Just look at the huge swing in favour of the rights of the common citizen in the grounbreaking marijana case of Prince vs Minister of Justice and others (Western Cape High Court case no: 8760/2013). I have access through work to draft legislation and issues up for discussion in the various committees in parliament. I can say without a doubt that the vape industry and any form of it's regulation do not feature at all. Please bear in mind that to become legislation or to significantly amend any piece of legislation the issue first passes through the standing committees who debate the issue and determine whether it's worthy or demands legislation/amendment. If so it goes to the state law advisors who ponder the issue and draft propsed legislation/amendments. These go back to the standing committee who debate the issue again. If satisfied (very seldom) it goes through the channels to the President who peruses it and if satisfied orders it be gazzetted for public comment and public hearings etc. This is just the beginning. We will talk again in 5 years time on this issue!
PS if anyone wants a copy of the judgment mentioned above let me know and I will make a plan to get it to you.