Legal issues and challenges

[Scott]

I know I am very new but believe we all face legal issues and challenges every now and then. I am convinced the reality is no different when coming to the vaping world.

The vast majority of us run for the hills and bury our heads in the sand when confronted by these nightmares.

I am involved in the legal fraternity and have been for 25+ years. Research is my passion and I am fortunate to have access to huge research resources in this regard and now that the vaping world has captured its latest devotee I want to learn all I can about the legalities of our chosen vice.

I am proposing a topic regarding the law and where we stand as vapers and in particular what our rights and obligations may be.

If this thread captures the interest of any members I would be more than willing to make regular contributions in respect of the law, court decisions, legislation, regulations and anything legal we should be aware of. In this regard I propose members enter questions or topics for discussion and I will research the issue or learn myself from other members experiences.

I am keen to hear how members feel in this regard.

Cheers,

 

[aktorsyl]

I know I am very new but believe we all face legal issues and challenges every now and then. I am convinced the reality is no different when coming to the vaping world.

The vast majority of us run for the hills and bury our heads in the sand when confronted by these nightmares.

I am involved in the legal fraternity and have been for 25+ years. Research is my passion and I am fortunate to have access to huge research resources in this regard and now that the vaping world has captured its latest devotee I want to learn all I can about the legalities of our chosen vice.

I am proposing a topic regarding the law and where we stand as vapers and in particular what our rights and obligations may be.

If this thread captures the interest of any members I would be more than willing to make regular contributions in respect of the law, court decisions, legislation, regulations and anything legal we should be aware of. In this regard I propose members enter questions or topics for discussion and I will research the issue or learn myself from other members experiences.

I am keen to hear how members feel in this regard.

Cheers,

I love this idea, especially to analyse/discuss upcoming legislation

 

[Scoob]

Based on whats happening in the USA and other spots around the world, I think this is quite an important topic, the entire industry can come crashing down if the wrong people get hold of legislation.

 

[Puff the Magic Dragon]

Great Scott ! Generous offer @Scott .

Perhaps you could explain the following : It is illegal to sell/import/buy fake products such as Nike running shoes, and yet it is legal to import/sell/buy 1 to 1 clones of vape gear (including company names and logo). I think a general explanation of patents vs trademarks would be helpful.

I/we obviously won't hold you to a proper binding legal comment .

No real research needed ...an off the cuff response would more than suffice.

 

[RichJB]

In regard to cloned or counterfeit products, it is important to understand that China comes from a history of communism, and communism has different ideas on private ownership, including things like patents and trademarks. More details here.

 

[Puff the Magic Dragon]

Hi @RichJB . I am well aware of the history of China and communism. I have a post grad degree in pol sci. What I would like to have explained is the fact that fake Nike trainers are illegal in SA whilst 1 to 1 vape gear is not.

 

[SAVaper]

Could be interesting.

 

[Andre]

Hi @RichJB . I am well aware of the history of China and communism. I have a post grad degree in pol sci. What I would like to have explained is the fact that fake Nike trainers are illegal in SA whilst 1 to 1 vape gear is not.

Probably because Nike is a registered trademark in South Africa, whilst the vape gear brands are not.

 

[Rob Fisher]

Hi @RichJB . I am well aware of the history of China and communism. I have a post grad degree in pol sci. What I would like to have explained is the fact that fake Nike trainers are illegal in SA whilst 1 to 1 vape gear is not.

Any 1 to 1 fakes are "illegal"... in South Africa the big boys like Nike register thier trademarks and employ a legal team of investigators and use the law to protect thier intellectual property. My brother in law (ex SAP) worked for such a company and they raided importers of cloned clothing, DVD's and CD's and confiscated the goods and did citizen arrests and let the courts handle the prosecution's.

If the International Vape Industry banded together and registered thier trademarks and put together a similar team there would be confiscations and prosecutions.

 

[Puff the Magic Dragon]

If the International Vape Industry banded together and registered thier trademarks and put together a similar team there would be confiscations and prosecutions

.

Yep. But if they do not they are legal to import/sell/buy.

Most of us agree that cloners should not copy company names and logos (trademarks). The design would probably fall under patent law. Good luck patenting a velocity or goon deck today. Even the "original" manufacturers copy them.

 

[KB_314]

Some might be tiring of this, but I would be interested in your views on the big picture - vaping in SA.

I read recently, in the last couple of days, on the FB page of "A Billion Lives" that in the US the FDA is now being sued regarding the whole vaping saga (I'm sure you know - deemed tobacco products with regulation strangling the industry putting small/medium vendors, the pulse of the entire industry, out of business. Only large players ((e.g big tobacco and big pharmaceutical i.e tobacco cessation suppliers)) will be left). High ranking democratic party leaders are linked to all sorts of nasties related to campaign funding and the likes, seemingly more from big-pharma, which coincide with strong anti-vaping standpoints in terms of timelines. I am not in law (but have unfortunately had to "lawyer up" a few times professionally) so you should definitely not rely on any of the "detail" or lack thereof in my post.

In Europe it's happening too. Tanks no larger than 2ml, nicotine in bottles no larger than 10ml! In Australia... let's not even go there.
Your thoughts on SA? Writing's on the wall to a degree? What would happen? What could the community do realistically? Maybe people on the forum already know the answers. I'm not certain though (and also trying to veer the thread a bit off clones which can sometimes circle, and get unnecessarily heated)

 

[Scott]

Based on whats happening in the USA and other spots around the world, I think this is quite an important topic, the entire industry can come crashing down if the wrong people get hold of legislation.[/QUOTE

 

[Scott]

I am unaware of any law in SA allowing the sale/import of fake products'. I will look into the suggestion that this is due to the manufacturer not registering patents etc or not enforcing same if registered. As is usually the case where there are willing buyers there will be a market for pirates. I am reluctant to dive into giving an opinion off the bat on such an obviously sensitive topic. You will definitely hear from me tomorrow though.

 

[RichJB]

I am not even slightly worried about the future of vaping. Not even with the FDA's deeming regs, and even less by the TPD. There seems to be a line of thought in the US that because current vaping companies can't afford the PMTA fees of $300k per product, "99% of vaping products will be banned" and the industry will die out. If 1% of vaping products remain then the industry hasn't died out. It just means that the remaining 1% scoops the entire market. What used to be shared between 10001 tiny manufacturers is now shared between five or six giant manufacturers.

But then, this is how capitalism works. Think of the juice industry, how many different brands are there at the moment? Ten thousand? It must be close to that. In which other capitalist free market consumer sector do you have the choice of 10k different brands? Go into your supermarket and look at your consumer choice in tinned fish, shampoo, floor polish, dishwashing liquid, mayonnaise, whatever. How many brands are there? Usually it will be five or six tops.

Vaping is just going through what every other consumer goods sector went through. Take computer gaming as an example. In the early days, beach bums like John Carmack and John Romero could open id games, code Doom and becoming gazillionaires overnight. The industry was comprised of thousands of tiny companies, all vying to code the next Doom. And, of course, they got ripped off left, right and centre. Everybody and his dog was copying their floppy disks and pirating their games. And these little companies couldn't afford the legal protections necessary.

Then the big boys like LucasArts, EA, Ubisoft see that there is a mountain of money to be made from gaming. So they move in, buy up all the promising small development houses and incorporate them into their monolithic corporate machinery. Those giants did have the money and legal clout to get gaming protected. They also had the budgets to get high quality games made. So massive rationalisation took place, with thousands of small developers vanishing and being replaced by huge conglomerates. That is the capitalist way.

We are seeing the same in vaping. That plethora of juice and atty and mod manufacturers will get sucked up by a few giant players - for whom the FDA's PMTA fees are no deterrent at all - and a mature, consolidated industry with relatively few major players will emerge. It's happened in every other consumer goods sector. Heck, it happened in the tobacco and pharma sectors themselves. So why wouldn't it also happen in vaping?

The FDA's deeming regs aren't the end, nor even the beginning of the end. They are, rather, the end of the beginning. The industry had its honeymoon phase where anybody could enter and there were no barriers to entry. Now we will see the inevitable capitalist rationalisation that results in survival of the fittest. Or the wealthiest, at any rate. It's not something to fear imo because, even without the FDA's regs, it would have happened naturally anyway. The gaming sector never had the equivalent of the FDA regs. Yet it went exactly the same way. It's just how capitalism systems work. That its future may not feature today's biggest players is no biggie. How many computer games are you playing atm that were coded by John Carmack or John Romero?

Jay-bo or Pretty Matthew or Messes or squidoode being sidelined by the capitalist rationalisation doesn't mean that the industry ends. Sure, they will tell you that the industry will end. And, for them, it might. But for the rest, life goes on. Gaming thrived long after Carmack, Romero and id games were history. It's a winning product, its future is assured.

 

[MysticNectar]

The more info we can spread about any topic relating to this is very important to the community as a whole. I look forward to seeing what you post

 

[KB_314]

@RichJB great post and I found myself nodding in agreement for the most part.
I'm not well-versed in this at all, so maybe I'm way off here. But something's not sitting quite right for me - the way I'm reading your post, you're almost suggesting that capitalism/free markets are linked or even synonymous with over-regulation and ultimately "interference" by authorities - weren't those the peeps in red? I've generally seen this as the "enemy" of free markets.
I don't have any issues with free markets tending towards an eventual (maybe obvious) position. If that is large companies ruling the roost, so be it. The voice of the people right? But I don't know how I feel about that being forced upon the market by say the FDA, and for all the wrong reasons.
In terms of the video game analogy, I enjoy video games. I like that there's a resurgence of "Indy" games, but for me these will never be able to compete with the EA's and Blizzards, whose games will always be more polished and in my experience, better. So I'm choosing the EA's and Apples for reasons of my own - quality or sometimes the perception of quality. But in vaping we see almost the opposite. The small workshops in Romania, Greece or the Philippines are producing in much smaller batches, to quality levels that far exceed the Aspires, Kangertechs and Vaporsharks, who will never reasonably be able to match the quality of the smaller productions. If all we had were the current "big" guys, and some el-cheepo big-tobacco driven products, I wouldn't be happy at all. And honestly, gauging by this forum, the smaller guys don't seem to be under threat in terms of market demands

 

[RichJB]

Capitalism is synonymous with freedom, freedom entails the freedom to sue, and therefore capitalism is also the home of over-regulation. It is our right to be protected, any government that is seen to be lax will be seen to have failed. Witness the negative reaction against the Bush administration for "allowing" 9/11 to happen. So now airline passengers have to take their shoes off at airports and aren't allowed nail clippers on planes. That is the price of being protected by the authorities.

Regarding the little guys v big guys scenario, one must factor in that in any market, role players will choose niches and areas of specialisation. The belief is that because big tobacco currently manufacture cigalikes and because big tobacco is the only sector likely to afford the PMTA fees, only cigalikes will be left after the FDA regs have come to pass. That is counter-intuitive and presumes that manufacturers dictate to customers rather than vice versa. Big tobacco might currently choose not to make open system mods and tanks as there are already more than enough small manufacturers vying for that market segment. But if those smaller manufacturers vacate the market due to regulation or whatever, it makes it very attractive for big tobacco to simply move in and take over. If a significant percentage of their customers want these products, they'd be crazy not to make them.

People are taking a snapshot of the situation at the point that the regs bite, and then projecting this as the future scenario: 99% of current products will not have passed the PMTA, therefore those 99% of products will be removed - and nothing will take their place. Business abhors a vacuum even more than nature does. If 99% of currently available personal hygiene products were taken off the market due to regulation and only Colgate toothpaste survived, does that mean that forever more, Colgate toothpaste would be the only personal hygiene product you could buy? Of course not. There is a market for shampoo, mouthwash, soap, deodorant, etc. Manufacturers would make products to supply those markets. If the demand exists, it will be satisfied - regardless of the law. If there is one thing that Prohibition or the War on Drugs taught us, it is that demand is always supplied.

Vaping is a winning product. More people are choosing it than any other form of smoking cessation. It is projected to become a $50bn industry shortly. Even if Big Tobacco takes it over completely following the FDA regs, they still have to satisfy their customers. If they don't, other giant players will move in to pick up the slack. So we'll get the products we want. Even if it's just Big Tobacco and Big Pharma, we'll still get what we want. If Big Tobacco refuse to make anything other than cigalikes and Big Pharma offer you a 200W regulated mod with an RTA, who are you going to support?

QC standards among today's big gear manufacturers are abysmal. 510s that pop out, paint that peels, boards that fry, buttons that get stuck, etc. I'm sure Big Tobacco or Big Pharma won't give us worse products. Of course, we might not be able to get exactly what we want. But that applies throughout consumer capitalism. I'd love to get avocado-flavoured mayonnaise at my Pick n Pay. But I can't, there isn't a big enough market for it to merit mass production. The same will apply in vaping. It doesn't kill me to live with limited choice in any other consumer goods sector. It won't kill me in vaping.

 

[wikus]

Hi and welcome on the forum.

Do u have any information as to what the vape court is and the purpose of said court? I've seen some post where members have mentioned the vape court, even a post where as someone from the vape court sent a post to an overseas manufacturer regarding the service or level of repairs not meeting certain levels of acceptance.
How do we contact the vape court if anything in that line should happen to me?
And if a was to sell vape related gear to someone and they don't pay up, will the vape court be able to help?
I tried Google but came up empty handed, hopefully u can shed some light on this for me.

Thanks

 

[KB_314]

Capitalism is synonymous with freedom, freedom entails the freedom to sue, and therefore capitalism is also the home of over-regulation. It is our right to be protected, any government that is seen to be lax will be seen to have failed. Witness the negative reaction against the Bush administration for "allowing" 9/11 to happen. So now airline passengers have to take their shoes off at airports and aren't allowed nail clippers on planes. That is the price of being protected by the authorities.

Regarding the little guys v big guys scenario, one must factor in that in any market, role players will choose niches and areas of specialisation. The belief is that because big tobacco currently manufacture cigalikes and because big tobacco is the only sector likely to afford the PMTA fees, only cigalikes will be left after the FDA regs have come to pass. That is counter-intuitive and presumes that manufacturers dictate to customers rather than vice versa. Big tobacco might currently choose not to make open system mods and tanks as there are already more than enough small manufacturers vying for that market segment. But if those smaller manufacturers vacate the market due to regulation or whatever, it makes it very attractive for big tobacco to simply move in and take over. If a significant percentage of their customers want these products, they'd be crazy not to make them.

People are taking a snapshot of the situation at the point that the regs bite, and then projecting this as the future scenario: 99% of current products will not have passed the PMTA, therefore those 99% of products will be removed - and nothing will take their place. Business abhors a vacuum even more than nature does. If 99% of currently available personal hygiene products were taken off the market due to regulation and only Colgate toothpaste survived, does that mean that forever more, Colgate toothpaste would be the only personal hygiene product you could buy? Of course not. There is a market for shampoo, mouthwash, soap, deodorant, etc. Manufacturers would make products to supply those markets. If the demand exists, it will be satisfied - regardless of the law. If there is one thing that Prohibition or the War on Drugs taught us, it is that demand is always supplied.

Vaping is a winning product. More people are choosing it than any other form of smoking cessation. It is projected to become a $50bn industry shortly. Even if Big Tobacco takes it over completely following the FDA regs, they still have to satisfy their customers. If they don't, other giant players will move in to pick up the slack. So we'll get the products we want. Even if it's just Big Tobacco and Big Pharma, we'll still get what we want. If Big Tobacco refuse to make anything other than cigalikes and Big Pharma offer you a 200W regulated mod with an RTA, who are you going to support?

QC standards among today's big gear manufacturers are abysmal. 510s that pop out, paint that peels, boards that fry, buttons that get stuck, etc. I'm sure Big Tobacco or Big Pharma won't give us worse products. Of course, we might not be able to get exactly what we want. But that applies throughout consumer capitalism. I'd love to get avocado-flavoured mayonnaise at my Pick n Pay. But I can't, there isn't a big enough market for it to merit mass production. The same will apply in vaping. It doesn't kill me to live with limited choice in any other consumer goods sector. It won't kill me in vaping.

I hope we get to meet and have a vape and a chat one day @RichJB I hear everything you are saying - see a couple of things slightly differently. I know there is a thread more targeted at this topic though so will search for it and tag you if I find it as we may have slightly veered off legal aspects I think!

 

[Rob Fisher]

@wikus Vape Court is a closed Facebook group so you go there and request to be added and then you can present your case.

https://www.facebook.com/groups/1788810331372783/

 

[kev mac]

I know I am very new but believe we all face legal issues and challenges every now and then. I am convinced the reality is no different when coming to the vaping world.

The vast majority of us run for the hills and bury our heads in the sand when confronted by these nightmares.

I am involved in the legal fraternity and have been for 25+ years. Research is my passion and I am fortunate to have access to huge research resources in this regard and now that the vaping world has captured its latest devotee I want to learn all I can about the legalities of our chosen vice.

I am proposing a topic regarding the law and where we stand as vapers and in particular what our rights and obligations may be.

If this thread captures the interest of any members I would be more than willing to make regular contributions in respect of the law, court decisions, legislation, regulations and anything legal we should be aware of. In this regard I propose members enter questions or topics for discussion and I will research the issue or learn myself from other members experiences.

I am keen to hear how members feel in this regard.

Cheers,

Good idea.As a Yank I was quite disappointed in the Cole,Bishop act being defeated.We as vapers have an up hill battle and the writing is on the wall.The facts are clear,smoking kills and vapeing saves lives.Unfortunatly while the lobbyist call the tune and public apathy being what it is I fear for vapeings future.Ad an older vaper if things start going south I can probably stock enough supplies to last me .The young bucks best come up with a strategy to keep vapeing going.

 

[Scott]

I know I am very new but believe we all face legal issues and challenges every now and then. I am convinced the reality is no different when coming to the vaping world.

The vast majority of us run for the hills and bury our heads in the sand when confronted by these nightmares.

I am involved in the legal fraternity and have been for 25+ years. Research is my passion and I am fortunate to have access to huge research resources in this regard and now that the vaping world has captured its latest devotee I want to learn all I can about the legalities of our chosen vice.

I am proposing a topic regarding the law and where we stand as vapers and in particular what our rights and obligations may be.

If this thread captures the interest of any members I would be more than willing to make regular contributions in respect of the law, court decisions, legislation, regulations and anything legal we should be aware of. In this regard I propose members enter questions or topics for discussion and I will research the issue or learn myself from other members experiences.

I am keen to hear how members feel in this regard.

Cheers,

As I undertook yesterday I have researched the issues raised by members as extensively as possible over last night and this morning.
I am not going to delve into the International aspects right now save to say we may be hearing predominantly negative views coming particularly from the USA and very little of the positive. From what I hear from close personal sources in the USA and Canada there is considerable regard being had to the positive medical tests and professional opinions that have emerged and hearings are being scheduled right up to congressional level to determine the future of the vape industry. I thus don't believe it's all doom and gloom.

I chose not to be lured into the debate regarding the economic giants and their potential supression of the smaller entrepreneur who is economically vulnerable or the pros and cons of the capitalist economic policies of the tobacco barons.

I have concentrated on the South African perspective and while I don't want to sound like a law lecturer it's important to get the foundation accurate. South African law eminates from three primary sources being the common law (created by custom and general practice over many years) ; statutory law (legislation both local and national, conventions, treatise etc) and finally the law of precedent (rulings made by our High Courts which are binding on lower courts).

All countries are sovereign and pass their own legislation, regulations and bylaws. South Africa is not bound by any of these but obviously feels the knock-on effect of foreign attitudes and research. We do however recognise and enforce foreign trade agreements and conventions.

Patents, trade marks and copyright is applied for in the country of origin of the product or design concept and once registered whether provisionally or final are then applied for internationally by manufacturers to countries with whom there state of origin has trade agreements and/or treatise. In this regard it is important to note that it's possible to hold a patent or trade mark or copyright in one country and manufacture the product or components in various other countries.

in South Africa a copyright exists for 50 years from date of registration and can be renewed on application.

South Africa is signatory to the International Patent Cooperation Treaty as well a multitued of trade and excise treatise. Most importantly with China, Taiwan, Japan, Thailand, USA, and other primary producers and exporters of electronic products.

I have sifted through all the legislation both local and national relating to patents, copyright and piracy and can refer members to the following Acts which I believe may be relevant and can be found on Google if you have absolutely nothing to do with your spare time:

1. Merchandise Marks Act 17 of 1941 (deals with marketing of goods)
2. Heraldry Act 11 of 1967 (deals with coats of arms, badges, insignia, rank etc.)
3. Patents Act 57 of 1978 (deals with patent of inventions)
4. Copyright Act 98 of 1978 (deals with duplication of original products)
5. Designs Act 195 of 1993 (deals with aesthetic and functionality uniqueness of designs)
6. Counterfeit Goods Act 37 of 1997 (deals with manufacture, sale and trade in counterfeit goods)
NB all of these Acts have been subject to ammendments promulgated from time to time and will be inserted into the latest version of the Act you find on Google.

Of all the above Legislation the Counterfeit Goods Act is the most important and probably worth a read some time. It prohibits the manufacture, sale, purchase and possession of counterfeit goods and makes provision for criminal and civil liability. This Act is enforced by SARS, Department of Trade and Industry, SA Customs Service, Department of Home Affairs and the South African Police Services and it's specialist units including the Hawks. Piracy and distribution of counterfeit goods is thus no joke in SA and is treated very seriously and it's enforcement is considered a priority to maintain and advance diplomatic relations with our international trade partners. (It would thus be advisable to wave around your knock-off designer rig at the next vape convention!).

I had regard to the suggestion that it was "legal" to distribute and possess fake or pirate vape equipment while illegal to do the same with clothing such as Nike. Without intending to offend anyone this is simply not true. the Counterfeit Goods Act makes it patently illegal to manufacture, sell, purchase or even possess ANY fake products infringing upon a patent or copyright whether it be a Nike pair of shoes, a CD, a computer or a vape device or accessory.

In this regard I took the liberty of contacting a colleague of mine who resigned from the bench and is employed as an investigator and lead prosecutor for the Trade and Industry who confirmed the above. He indicates that the challenge remains that they require a complainant to lay a complainant in order to get the ball rolling or a tip off or a lucky break to catch perpetrators red handed. Ignorance is usually the first defence raised and as we all know the majority of pirate products are so similar to the original even experienced vapers can be misled.

He also made it clear that in the "piracy industry" large volumes of high end products are the most profitable. Thus Nike, Puma and Addiddas are prime targets. Vape equipment, particularly in South Africa, is small fry in the piracy world and very small quantities reach the market. We as the vape enthusiasts will have to play a more proactive role in eradicating piracy in the vape industry.

I have been given his undertaking to keep us posted on any action taken or seizures of fake products and importantly of warnings regarding alerts of circulating pirate products.

I further had regard to any Legislation regarding the use of vaping devices and equipment. The only legislation I could trace that may be remotely applicable is the Tobacco Products Control Act 83 of 1993. This Act is probably also worth a read. After perusing this Act carefully I am convinced it has no bearing on us as vapers whatsoever!

I have taken the liberty to extract certain definitions from the Act to confirm my point:

"emission" - any substance that is produced when a tobacco product is used.
"tobacco product" - means a product containing tobacco that is intended for human consumption, and includes, any device, pipe, papers, tubes, filters,portion pouches or similar objects manufactured for use in the consumption of tobacco products.
"smoke" - means to inhale, exhale, hold or otherwise have control over an ignited tobacco product, weed or plant. (smoked and smoking have corresponding meanings).

The rest of the Act simply revolves around the creation of prohibitions regarding the use of tobacco products and advertising and the enforcement and penalties for transgresions. The words "electronic", "liquid", "flavours" do not feature at all.

I used the above words mentioned in the paragraph above on all the search stations available to justice for legislation and law reports and did not find a single reference. This indicates that the issue of electronic cigarettes has never been considered by our courts or featured in any legislation pending or already promulgated.

This is a complex issue and cannot be considered finalised until more time is spent researching local and international legislation, reports, and debates on the topic.

I hope the above as a start is helpful.

Cheers for now!

 

[boxerulez]

As I undertook yesterday I have researched the issues raised by members as extensively as possible over last night and this morning.
I am not going to delve into the International aspects right now save to say we may be hearing predominantly negative views coming particularly from the USA and very little of the positive. From what I hear from close personal sources in the USA and Canada there is considerable regard being had to the positive medical tests and professional opinions that have emerged and hearings are being scheduled right up to congressional level to determine the future of the vape industry. I thus don't believe it's all doom and gloom.

I chose not to be lured into the debate regarding the economic giants and their potential supression of the smaller entrepreneur who is economically vulnerable or the pros and cons of the capitalist economic policies of the tobacco barons.

I have concentrated on the South African perspective and while I don't want to sound like a law lecturer it's important to get the foundation accurate. South African law eminates from three primary sources being the common law (created by custom and general practice over many years) ; statutory law (legislation both local and national, conventions, treatise etc) and finally the law of precedent (rulings made by our High Courts which are binding on lower courts).

All countries are sovereign and pass their own legislation, regulations and bylaws. South Africa is not bound by any of these but obviously feels the knock-on effect of foreign attitudes and research. We do however recognise and enforce foreign trade agreements and conventions.

Patents, trade marks and copyright is applied for in the country of origin of the product or design concept and once registered whether provisionally or final are then applied for internationally by manufacturers to countries with whom there state of origin has trade agreements and/or treatise. In this regard it is important to note that it's possible to hold a patent or trade mark or copyright in one country and manufacture the product or components in various other countries.

in South Africa a copyright exists for 50 years from date of registration and can be renewed on application.

South Africa is signatory to the International Patent Cooperation Treaty as well a multitued of trade and excise treatise. Most importantly with China, Taiwan, Japan, Thailand, USA, and other primary producers and exporters of electronic products.

I have sifted through all the legislation both local and national relating to patents, copyright and piracy and can refer members to the following Acts which I believe may be relevant and can be found on Google if you have absolutely nothing to do with your spare time:

1. Merchandise Marks Act 17 of 1941 (deals with marketing of goods)
2. Heraldry Act 11 of 1967 (deals with coats of arms, badges, insignia, rank etc.)
3. Patents Act 57 of 1978 (deals with patent of inventions)
4. Copyright Act 98 of 1978 (deals with duplication of original products)
5. Designs Act 195 of 1993 (deals with aesthetic and functionality uniqueness of designs)
6. Counterfeit Goods Act 37 of 1997 (deals with manufacture, sale and trade in counterfeit goods)
NB all of these Acts have been subject to ammendments promulgated from time to time and will be inserted into the latest version of the Act you find on Google.

Of all the above Legislation the Counterfeit Goods Act is the most important and probably worth a read some time. It prohibits the manufacture, sale, purchase and possession of counterfeit goods and makes provision for criminal and civil liability. This Act is enforced by SARS, Department of Trade and Industry, SA Customs Service, Department of Home Affairs and the South African Police Services and it's specialist units including the Hawks. Piracy and distribution of counterfeit goods is thus no joke in SA and is treated very seriously and it's enforcement is considered a priority to maintain and advance diplomatic relations with our international trade partners. (It would thus be advisable to wave around your knock-off designer rig at the next vape convention!).

I had regard to the suggestion that it was "legal" to distribute and possess fake or pirate vape equipment while illegal to do the same with clothing such as Nike. Without intending to offend anyone this is simply not true. the Counterfeit Goods Act makes it patently illegal to manufacture, sell, purchase or even possess ANY fake products infringing upon a patent or copyright whether it be a Nike pair of shoes, a CD, a computer or a vape device or accessory.

In this regard I took the liberty of contacting a colleague of mine who resigned from the bench and is employed as an investigator and lead prosecutor for the Trade and Industry who confirmed the above. He indicates that the challenge remains that they require a complainant to lay a complainant in order to get the ball rolling or a tip off or a lucky break to catch perpetrators red handed. Ignorance is usually the first defence raised and as we all know the majority of pirate products are so similar to the original even experienced vapers can be misled.

He also made it clear that in the "piracy industry" large volumes of high end products are the most profitable. Thus Nike, Puma and Addiddas are prime targets. Vape equipment, particularly in South Africa, is small fry in the piracy world and very small quantities reach the market. We as the vape enthusiasts will have to play a more proactive role in eradicating piracy in the vape industry.

I have been given his undertaking to keep us posted on any action taken or seizures of fake products and importantly of warnings regarding alerts of circulating pirate products.

I further had regard to any Legislation regarding the use of vaping devices and equipment. The only legislation I could trace that may be remotely applicable is the Tobacco Products Control Act 83 of 1993. This Act is probably also worth a read. After perusing this Act carefully I am convinced it has no bearing on us as vapers whatsoever!

I have taken the liberty to extract certain definitions from the Act to confirm my point:

"emission" - any substance that is produced when a tobacco product is used.
"tobacco product" - means a product containing tobacco that is intended for human consumption, and includes, any device, pipe, papers, tubes, filters,portion pouches or similar objects manufactured for use in the consumption of tobacco products.
"smoke" - means to inhale, exhale, hold or otherwise have control over an ignited tobacco product, weed or plant. (smoked and smoking have corresponding meanings).

The rest of the Act simply revolves around the creation of prohibitions regarding the use of tobacco products and advertising and the enforcement and penalties for transgresions. The words "electronic", "liquid", "flavours" do not feature at all.

I used the above words mentioned in the paragraph above on all the search stations available to justice for legislation and law reports and did not find a single reference. This indicates that the issue of electronic cigarettes has never been considered by our courts or featured in any legislation pending or already promulgated.

This is a complex issue and cannot be considered finalised until more time is spent researching local and international legislation, reports, and debates on the topic.

I hope the above as a start is helpful.

Cheers for now!

So what I take from the clone issue is,,

if the original is not copyrighted or patented there is no problem with distributing and selling clones of said products? We need a TL;DR please buddy.

 

[Christos]

So what I take from the clone issue is,,

if the original is not copyrighted or patented there is no problem with distributing and selling clones of said products? We need a TL;DR please buddy.

I think you should read again...

 

[boxerulez]

I think you should read again...

I had regard to the suggestion that it was "legal" to distribute and possess fake or pirate vape equipment while illegal to do the same with clothing such as Nike. Without intending to offend anyone this is simply not true. the Counterfeit Goods Act makes it *** patently illegal *** to manufacture, sell, purchase or even possess ANY fake products **** infringing upon a patent or copyright *** whether it be a Nike pair of shoes, a CD, a computer or a vape device or accessory.

??? @Scott