Preface
Chapter 1
Introduction: basic concepts
1
Free market economy and competition of 1998
3
Historical overview of regulation of economic competitive relationships
3.3
Middle Ages to eighteenth century
3.4
From nineteenth century onwards
5
Competition law and Bill of Rights
Chapter 2
Maintenance and promotion of competition
1
Interface between public and private competition law
2
Common law on maintenance and promotion of competition
2.3
Fraudulent stifling of competition
3
Statutory law on maintenance and promotion of competition
3.1
Brief history of anti-monopoly legislation in South Africa
3.2
Policy in respect of maintenance and promotion of competition
3.3
Competition Act 89 of 1998
3.3.1
Comprehensive statute
3.3.2
Purpose and interpretation
3.3.3
Field of application
3.3.4
Prohibited practices
3.3.4.1
Restrictive horizontal practices
3.3.4.2
Restrictive vertical practices
3.3.4.3
Abuse of dominance
3.3.5
Mergers and merger control
3.3.5.1
Definitions of merger and control
3.3.5.2
Evaluation of mergers
3.3.5.3
Merger notification and implementation
3.3.6
Competition authority
3.3.6.1
Competition Commission
3.3.6.2
Competition Tribunal
3.3.6.3
Competition Appeal Court
3.3.7
Investigation and adjudication procedures
3.3.7.1
Restricted and confidential information
3.3.7.2
Powers of summons and search
3.3.7.3
Complaint procedures
3.3.7.5
Competition Tribunal proceedings
3.3.7.6
Appeals and reviews
3.3.8
Enforcement, remedies and offences
3.3.8.1
Enforcement and punitive powers
3.3.8.2
Civil actions and jurisdiction
4
International trade practices: protection against dumping, subsidised export and disruptive competition
Chapter 3
Basis for protection against unlawful competition in South African law
2
Action for pain and suffering
4.1
General development of Aquilian liability
4.1.4
South African case law
4.2
Recognition of Aquilian liability for unlawful competition
4.3
Requirements of delict of unlawful competition
Chapter 4
Unlawful competition: doctrine of subjective rights
2
Doctrine of subjective rights
3
Theories as to subjective rights involved in unlawful competition
3.1
Theory of personality rights
3.1.1
General right of personality
3.1.2
Right to free economic activity
3.1.3
Right to undertaking as particular economic activity
3.2
Theory of immaterial property rights
3.2.1
Right to undertaking
3.2.2
Right to undertaking as economic unit
3.2.3
Right to immaterial values of undertaking
Chapter 5
Right to goodwill as premise for unlawful competition
1
General: recognition of immaterial property
2
Right to goodwill as immaterial property right
2.1
Theoretical foundations
2.2
South African case law
3
Right to goodwill and right to distinctive mark
4
Right to goodwill and right to earning capacity
Chapter 6
Infringement of right to goodwill: unlawfulness of competition
2
Criteria for unlawfulness
2.1
Fairness and honesty in competition
2.2
Boni mores or legal convictions of community
2.3
Reconciliation of boni mores with fairness and honesty in competition
2.5
Boni mores as supplement to competition principle
3
Infringement of right to goodwill and unlawful competition
4
Indirect and direct infringements of goodwill: forms of unlawful competition
Chapter 7
Deception or misrepresentation as to competitor's own performance; passing off
1
Deception as to competitor's own performance: general principle
1.2
Recognition in case law
1.3
Requirement of unlawfulness
1.4
Misrepresentation as to own performance and passing off
2.2
Recognition in case law
2.4
Requirements for liability
2.4.1.1
Distinctive mark and reputation
2.4.1.6
Requisite reputation and proof
2.4.1.8
Defence of unclean hands
2.4.1.9
Defence of concurrent right
2.4.1.10
Defences of estoppel, acquiescence (tacit consent) and waiver
2.4.2
Deception or confusion
2.4.2.1
Likelihood of deception: use of similar mark
2.4.2.2
Ordinary or average customer
2.4.2.5
Common field of activity
2.5.2
Actio legis Aquiliae
3.1
Trade Marks Act 194 of 1993
3.2
Business Names Act 27 of 1960
3.3
Companies Act 61 of 1973; Close Corporations Act 69 of 1984
3.4
Copyright Act 98 of 1978
3.5
Merchandise Marks Act 17 of 1941; Trade Practices Act 76 of 1976; Consumer Affairs (Unfair Business Practices) Act 71 of 1988; Counterfeit Goods Act 37 of 1997
Chapter 8
Leaning on; undue influencing of customers
1.2.2
Concealed leaning on
1.5
Right to advertising mark
1.6
Summary and conclusion
2
Undue influencing of customers
2.2
Bribery of employees or agents
Chapter 9
Appropriation of competitor's business ideas: acquisition and use of competitor's trade secrets or confidential information; misappropriation of competitor's performance
1
Appropriation of competitor's business ideas
1.2
Acquisition and use of competitor's trade secrets or confidential information
1.2.1
Right to trade secret
1.2.2
Unlawful competition
1.2.3
Employer-employee relationship
1.2.3.1
Revelation during employment
1.2.3.2
Use after termination of employment
1.2.4
Action for breach of trust or confidence
1.3
Appropriation of published business ideas
2
Misappropriation (adoption or copying) of competitor's performance
2.1
Direct adoption of rival's performance
2.2
Identical duplication of rival's performance
Chapter 10
Interference with competitor's contractual relationships; competition in conflict with contractual obligations and statutory provisions
1
Interference with competitor's contractual relationships
1.2
Lawful termination of contract
2
Competition in conflict with contractual obligations
3
Competition in conflict with statutory provisions
3.2
Recognition in case law
3.2.1
General delictual principle and unlawful competition
3.2.2
Requirement of damage
3.2.3
Practical application
3.3
Criticism of Patz v Greene & Co
Chapter 11
Disparagement of competitor's undertaking, goods or services
1
Untrue statements or injurious falsehood
1.2
Recognition in case law
1.2.1
Appropriate remedy: Aquilian action or actio iniuriarum
1.2.2
Requirement of fault
1.2.3
Requirement of damage
1.3
Rights of personality and unlawful competition
1.3.1
Right to good name of entrepreneur
1.3.2
Right to good name (reputation) of undertaking as juristic person
1.3.3
Other rights of personality of juristic person
2
True statements and comparative advertising
Chapter 12
Instigation of boycott against competitor; exertion of physical or psychological pressure on competitor's customers or employees; infringement of independent rights of competitor
1
Instigation of boycott against competitor
1.2
Recognition in case law
1.3
Danger of English law influence
2
Exertion of physical or psychological pressure on competitor's customers or employees
2.2
Recognition in case law
3
Infringement of independent rights of competitor
Chapter 13
Grounds of justification: direct infringements of goodwill
4.2
Comparative advertising
4.3
Disparagement and defamation
Bibliography
Table of Cases
Table of Statutes
Index
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