There are a number of differences between working in IP in the United Kingdom and doing the same in South Africa (RSA). One of the biggest is the frequent need to understand the concept of exchange control and how it interfaces with IP (see my earlier post here, for example).
As most readers and any foreign national to RSA who has bought and sold assets in RSA will know, the requirement to obtain exchange control approval from the RSA Treasury is likely to find itself as a condition precedent/suspensive condition to that transaction. It is also trite that IP is an asset in the broad sense with the propensity, directly or indirectly, to create royalty streams. But it can be a real brain twister trying to reconcile legislation designed to control the flow of money first promulgated in 1961, the protectionist mindset of the local Treasury, the more liberal views of those dealing with IP and the nature of IP as an asset in all its registered and unregistered forms, in 2011. The latest RSA Supreme Court of Appeal judgement (Oilwell (Pty) Ltd v Protec International Ltd) illustrates this well enough.
Oilwell had attempted to reverse a trade mark assignment for failure to obtain exchange control. The leading IP judge in RSA (with the support of a full bench) dismisses the appeal. By doing so, he effectively challenges the Treasury to find another way of restricting the flow of IP from RSA. The case, summarised with comments on Afro-IP here, is seen as a victory for those who advocate freedom of exchange and a relief to advisors who had not, as a practice, advised clients to seek exchange control for IP assignments. However, before you get on the dance floor be warned ... there is a strong feeling that the Treasury may turn down the music.
Posted by Darren Olivier to IP Finance
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