By Yasmina Griesel 

Category: Intellectual Property Law  | Commercial Law

INTRODUCTION 

With global innovations and emerging technologies and/or ideas, it is important for businesses offering these innovative goods and/or services to understand the laws relating to protecting their intellectual property and what rights it holds in that regard. 

At the outset, there are three types of recognized intellectual property: patents, trademarks and copyright. Each type offers exclusive rights over the production and use of ideas and/or innovations and/or branding of goods, services or processes.  

PATENTS 

A Patent protects original ideas, products, designs and processes for up to 20 years. It is an exclusive right gained by innovators who register their innovation with the Companies and Intellectual Property Commission (CIPC), which is the custodian of all patent applications filed in South Africa as per the Patent Act 57 of 1978 (“the Patent Act”). Therefore, by registering a patent, you are safeguarding your innovation from being commercially made, used, exercised, disposed or imported by other persons without your permission.  

In terms of the Patent Act, there are four conditions which are necessary to register a patent and acquire an exclusive right over an innovation:  

The innovation must be novel or new (a novelty search is normally done by a patent attorney); The innovation must not be obvious to any skilled person in a specific subject area; The innovation must be useful or applied in its respective commercial industry and / or agriculturally; The innovation must not be specifically excluded form protection under the Patent Act. 

Once registered, you will acquire a certificate and your patent will be protected for up to 20 years. Once the period of protection has lapsed, you cannot register the patent anew and the innovation becomes usable by anyone. When registering a patent, it is recommended to approach a patent attorney for assistance. 

TRADEMARKS 

Trademarks are less complex when it comes to registration. They are also registered through CIPC, but they are governed and protected by the Trade Marks Act 194 of 1993. Trademarks protect your branding: namely your logos, slogans, and names which distinguish you, your products and / or services. Effectively, no one else will be able to use the registered intellectual property (or anything similar to it).  

There is an extensive list of classes of goods and services under which you can register your trademark. This list can be obtained from the CIPC website. You must register your trademark for each applicable class. Trademarks can be renewed after every 10 years. 

COPYRIGHT 

This is an exclusive right offered to a creator of an original work and is governed and protected under the Copyright Act 98 of 1978 (“the Copyright Act”).  A copyright prevents other persons from reproducing, publishing, making adaptations, importing and broadcasting your original work.  

You do not have to register a copyright because it is automatically granted to the original creator as set out in the Berne Convention (which is applicable to South Africa by virtue of the fact that it is a signatory to the Trade Related Aspects of Intellectual Property Rights (commonly known as “TRIPS”), the legal framework which influences the national intellectual property laws). 

This is normally applicable to a range of artistic works (including recordings and musical works), but it also includes computer programs which are regarded as literary works. Copyrights can be renewed, and they can be granted for up to 50 years or for the lifetime of an author/ creator.  

For a work to be eligible for copyright, it must be original or giving rise to original character(s), and it must be expressed or reduced to a material form (mere ideas are not legible for copyright). 

CONCLUSION 

Having gained insight into how to best protect your intellectual property, you can also consider using contracts as a precautionary measure to further ensure protection (such as non-disclosure agreements). You should also be cautious of registered patents and trademarks to avoid complications when attempting to register your own – to do this, you should approach an attorney for assistance. 

Contact an attorney at SchoemanLaw inc for your family law and contractual needs by visiting our website at www.schoemanlaw.co.za.   

Yasmina Griesel
SchoemanLaw Inc – www.schoemanlaw.co.za