QUESTION 4

YOKO, a Japanese manufacturer of computer games, is a proprietor of the South African trademark FLASHTRASH. The trademark FLASHTRASH is registered in class 9 in respect of electronic instruments, computer software, and electronic entertainment devices and software. YOKO markets its products worldwide through a chain of national distributors. YOKO's products are sold in South Africa by ZOLI, YOKO's authorised distributor. The FLASHTRASH products are the most popular computer game brand in South Africa. ZOLI informs YOKO that ZELDA, a local manufacturer, is marketing a range of children's non-computerised games under the trademark FLUSHTRUSH.

4.1 Advise YOKO whether ZELDA's use of the FLUSHTRUSH mark in relation to noncomputerised games constitutes an infringement of YOKO's mark FLASHTRASH. Identify the section of the Trademarks Act 194 of 1993 on which you would rely to institute action and give reasons for your answer. (10)

4.2 ZELDA applies to register the mark FLUSHTRUSH for non-computerised games in class 28 with the specification 'games and playthings for children'. Can YOKO successfully oppose this application, and on what section of the Trademarks Act 194 of 1993 will it rely? (5)

4.3 Would your answer in 4.1 differ if YOKO has not registered the mark FLASHTRASH in South Africa? Give full reasons for your answer. (10)

4.4 Advise YOKO whether the Trademarks Act allows it to prevent ZOLI, its local distributor, from importing less expensive FLASHTRASH products from Korea, where they are manufactured by a Korean licensee of YOKO, into South Africa. (5)