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>-0.18324
Act No. 37, 1997
GOVERNMENT GAZETTE, 1 OCTOBER 1997
COUNTERFEIT GOODS ACT. 1997
conduct. the exercise or performance of his or her powers or duties in terms of section
4(1 ), 5.6, 7 or 9 or the nature of the circumstances in or activities with reference to
w’hich those powers or duties were exercised or performed, is in issue or relevant in
those proceedings.
(3) In any civil proceedings concerning an act of dealing in counterfeit goods by any 5
person, it will be permissible, if relevant, to present evidence about that person’s
conviction on account of an offence founded on the same act of dealing in counterfeit
goods.
(4) (a) A statement in the prescribed form, made under oath or affirmation by an
inspector, to the effect that the goods specified under his or her signature in the inventory 10
artached to that statement, are goods seized by him or her from a specified person at a
specified place and on a specified date, will, upon production to the court, be admissible
in evidence and be sufficient proof of the facts stated therein in any civil or criminal
proceedings concerning counterfeit goods or any act of dealing therein, if relevant to
those proceedings and if the inventory has been prepared by the inspector, and has been 15
certified to be correct, as required by section 7(1)(a).
(b) If a statement has been produced and handed in as evidence in terms of paragraph
(a), the court, in its discretion and notwithstanding the provisions of that paragraph, may
order that the inspector who made that statement be directed or subpoenaed to appear
before the court to give oral evidence concerning any matter mentioned or dealt within 20
that statement.
(5) Where the subsistence of an intellectual property right in respect of protected
goods or any person’s title to or interest in such intellectual property right is in issue in
any civil or criminal proceedings concerning counterfeit goods, the subsistence of, title
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to or interest in such intellectual property right, where it is alleged—
(a) to encompass the rights in respect of a trade mark as contemplated in
paragraph (a) of the definition of “intellectual property right” in section 1(1),
may be proved in accordance with the provisions of sections 49, 50 and 51 of
the Trade Marks Act, 1993;
(b) to be copyright in a work, maybe proved in accordance with the provisions of 30
section 26(1 2) of the Copyright Act, 1978, which provisions will apply
mutatis mutandis;
(c) to be the exclusive right to use a particular mark, conferred by a notice issued
under section 15 of the Merchandise Marks Act, 1941, may be proved by
producing to the court a copy of the Gazette in which that notice was 35
published, accompanied by a statement under oath or affirmation made by the
Minister or any officer in the Department of Trade and Industry designated by
the Minister, which is to the effect that such notice has not been withdrawn or
amended in its essence.
However. the provisions of this subsection will not be construed so as to detract from the 40
power of the court, in relation to any such matter or any aspect thereof—
(i) to require oral evidence to be given;
(ii) in the case of a High Court, to order that the evidence of a person who resides
or is for the time being outside the area of jurisdiction of that Court, be taken
by means of interrogatories.
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(6) Where any person who conducts business in protected goods featuring, bearing,
incorporating or embodying the subject matter of a particular intellectual property right
is proved to have been found in possession of suspected counterfeit goods to which the
subject matter of the same intellectual property right has been applied—
(a) it will, in any civil proceedings concerning an act of dealing in counterfeit 50
goods founded on that person’s possession of the suspected counterfeit goods,
be presumed, until the contrary is proved, that such person was in possession
of the latter goods for the purpose of dealing therein if the quantity of those
goods is more than that which, in the circumstances, reasonably may be
required for his or her private and domestic use;
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(b) the same presumption will, in any criminal proceedings arising from that
person’s possession of the suspected counterfeit goods, apply mutatis