South Africa: Why Consult A Patent Or Trade Mark Attorney

Last Updated: 25 April 2012
Article by Rowen Forster

Most Read Contributor in South Africa, September 2016

INTELLECTUAL property, including patents, trade marks, copyright and registered designs, is increasingly recognised as a valuable asset for any business. Traditionally, these intangible assets have been used to protect the monopoly of the owner in his idea, product, word or artistic creation but they have, in recent times, become increasingly important as valuable balance sheet assets for businesses. Often the value of a business's intellectual property exceeds that of its traditional fixed assets – in fact, the President of Coca-Cola, one of the world's most valuable brands, was quoted as saying that should all the company's buildings, vehicles, factories and equipment be destroyed, Coca-Cola Inc would emerge from the ruins and build itself around the trade mark.

Intellectual property is created through the creative or innovative activities of people, and the law recognises that it is reasonable to grant a monopoly to a person as a reward for creativity in return for making it available to the world at the end of the monopoly period. This trade-off has been shown to stimulate people, businesses and hence economies, to innovate and originate their own ideas and technology rather than replicate the ideas of others.

However, it is essential that a patent or trade mark attorney be consulted in order to take advantage of the legal protection available to a business, firstly to identify what may be protected and secondly, to advise what form of intellectual property protection would be suitable.

A patent is valid for 20 years in most countries and allows the patent holder to prevent others from making, using, exercising or disposing of the product or process described in the patent specification. Patents are granted for inventions that are novel and involve an inventive step over what is in the public domain at the time of making the application. Aside from the requirements of novelty and inventiveness, the Patents Act also sets out what is excluded from patent protection.

Trade marks are also commonly referred to as "brand names" and are marks used in relation to goods or services for the purpose of distinguishing them from other identical or similar goods or services which are connected in the course of trade with another person. A trade mark may be a word, logo, name, signature, shape, colour, container for goods, or even a sound, or a combination of these, as long as it may be represented graphically. A good trade mark distinguishes a product from competing products and through continued use, advertising and marketing, results in that brand being identifiable by consumers with the product or service for which it used.

Registered designs (or industrial designs) are obtainable to protect the novel shape, pattern, configuration or ornamentation of an article. They have a narrower scope of protection than patents, but can be extremely useful. Both aesthetic and functional registered designs exist under the Registered Designs Act.

The infringement of a registered design is judged "solely by the eye" and the visual characteristics of an article may be purely aesthetic (aesthetic design) or may have a particular appearance in order to perform a certain function (functional design).

Copyright protection is available to those who create musical, artistic or literary works. Artistic works include paintings, sculptures, drawings (including architectural drawings), as well as photographs and models. Unlike the three forms of intellectual property discussed above, copyright does not require a registration process in South Africa and, in fact, in most countries –with the Unites States of America being a notable exception. The exception to this rule is cinematographic films, which need to be registered with the Companies and Intellectual Property Commission (Cipc).

The registration of these intellectual property rights often provides the key first step to commercial exploitation of these innovations. Failure to timeously protect one's rights can open the door to competitors profiting from the research and development carried out by the originator of an idea, and as a result, enter the market with a competing product at a lower price.

Consulting an intellectual property attorney ensures that your valuable, intangible assets are optimally protected by the Intellectual Property laws of our country, or of any other country in which your products are sold or in which your services are rendered. Through optimal merchandising, licensing and/or commercialisation, a specialist will be able to assist in maximising your returns on your investment of time and resources in these rights. Not only will this result in your intellectual property rights being comprehensively protected, but it will also enforce your rights to prevent any unauthorised use or exploitation by third parties - giving your business a competitive advantage through pro-active and effective strategic management of its intellectual property portfolios.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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