No. 37148 GOVERNMENT GAZETTE, 10 December 2013 Act No. 28 of 2013 46 Intellectual Property Laws Amendment Act, 2013 46 Infringement of traditional mark, exceptions, licence fees and benefits 43F. (1) Notwithstanding the provisions of section 34(1), the proprietor of a trade mark in respect of a traditional term or expression shall not be entitled to interfere with or restrain a person referred to in section 35 or a person who commenced using a mark in the course of trade in the manner contemplated in section 34(1) at a date prior to the commencement of the Intellectual Property Laws Amendment Act, 2013, and has continued to make bona fide use of such mark: Provided that if any commercial benefit is derived from any such use after the date of registration of the traditional term or expression or geographical indication in terms of section 43D, a licence fee, a benefit, or both such licence fee and benefit, shall be paid by such person to the proprietor as provided for in subsection (4). (2) Any person who has acquired rights as contemplated in subsection (1) must comply with section 43B(6)(b) and (c), within 12 months after the commencement of the Intellectual Property Laws Amendment Act, 2013: Provided that— (a) the rights of the indigenous community to licence fees or benefits or both such licence fees and benefits shall start on the commencement of the Intellectual Property Laws Amendment Act, 2013; and (b) save for the obligations contemplated in this subsection and subsection (1), such person shall continue to hold his or her right in the manner he or she has done prior to the commencement of the Intellectual Property Laws Amendment Act, 2013. (3) Any person who intends to acquire rights pertaining to use of the indigenous term or expression or geographical indication after the commencement of the Intellectual Property Laws Amendment Act, 2013, must comply with section 43B(6). (4) The amount or value of the licence fee, benefit, or to both such licence fee and benefit, contemplated in subsection (1) or negotiated for in the benefit sharing agreement contemplated in subsection (3), shall be determined— (a) by agreement between the person who is the user of the mark and the owner of the mark; (b) by one or more collecting societies representing either or both of these parties; or (c) in the absence of agreement as contemplated in paragraph (a) or (b) being reached, the amount or value of the licence fee, benefit, or both such licence fee and benefit, by— (i) an institution accredited by the Commission as contemplated in section 43I(1); or (ii) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965): Provided that if the persons referred to in subsection (4)(a) or (b) cannot agree on which referral to follow in terms of this subsection within a reasonable period, any of the persons may refer these disputes for resolution in terms of section 43I. (5) Agreements concluded in terms of subsections (2), (3) or (4)(a) or (b) must be submitted to the Council, who shall— (a) scrutinise the agreement for compliance with intellectual property laws, including this Act and the community protocol; and (b) where any clause within the contract is regarded as not being to the benefit of the indigenous community or member of the indigenous community concerned, require renegotiation of said clause and provide the necessary advice. (6) The owner of a certification or collective trade mark in a derivative indigenous term or expression or geographical indication shall pay a licence fee or benefit, agreed to as set out in this section, to the owner or owners of certification or collective trade marks in the indigenous term or 5 10 15 20 25 30 35 40 45 50 55