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Dave Hutchison, founder and owner of local sock company Sexy Socks South
Africa, has after a lot of hard work and effort,
established a niche brand in the footwear market in South Africa.
Hutchison began the company around five years ago with the idea
that there has to be a more human and sustainable way of
manufacturing products. His brand today is well known amongst South
Africans who enjoy wearing trendy and fashionable socks. In July
2019, Hutchinson was shopping in a Woolworths SA store
when he stumbled upon, what looked like to him, a copy of one of
his most popular, original sock designs.
The socks on sale at Woolworths SA were made from
bamboo and on sale for well below Hutchison's asking price. In
fact, Woolworths SA's socks were not even close to
what Hutchison could ever afford to ask for his original Sexy
Socks and such a price will only ever be able to be asked for
if the product was made in China. Hutchison then went on to notice
that Woolworths SA knocked off designs from not only his
brand but from many more sock brands in South Africa.
Competition is usually considered a positive thing for an
industry. It forces you to continue to improve and gives your
customers more options. Imitation is the most genuine form of
flattery, as the old saying goes. But, while that may be true in
certain areas of life, it's hardly encouraging when it happens
in the business world. Is it fair for big corporates such as
Woolworths SA to keep coping ideas from small enterprises
that are locally sourcing material and generating employment? All
that imitation says is that someone else, usually a big corporate,
is out there trying to latch onto an idea or niche that small
enterprise's spent months or years building.
There are numerous ways in which SMEs may protect their
company's ideas, designs and logo's from being stolen. One
of the most important ways to do this is by protecting your company
legally. The more legal protection you can get for your business
and/or products, the better off you will be.
It is important for a company to protect its intellectual
property legally. After all intellectual property is one of a
company's most valuable assets, so be it an intangible
one. Intellectual property encompasses Designs, Copyright,
Trademarks and Patents.
Patents protect inventions that are new, inventive and capable
of being used in trade, industry or agriculture. Whereas, designs
protect the shape, pattern, configuration or ornamentation of
articles; trademarks protect trading names and brands; and
copyright protects works reduced to material form from being
copied.
Hutchinson should have protected the design of his socks by way
of intellectual property law in order to stop big corporates from
ever being tempted in copying him
A design may have both aesthetic and functional features, both
protected separately. Two of the most important requirements when
registering a design is that a design should be new and original in
terms of the Design Act.
A design is deemed to be new if it can be distinguished from
what has been done before. A crucial consequence of this
requirement is that the owner of a new design must be careful not
to disclose the design publicly, before filing a design
application. The Design Act, however, does provide for a grace
period of six months from the first public disclosure of the
design, following which it is still possible to obtain valid design
protection. Therefore, it is important for SMEs to be aware of the
opportunity to register their design rights early in the design
process to avoid any stumbling blocks down the line.
Internal procedures should be put in place by SMEs to identify
opportunities to protect their intellectual property adequately to
stop this from happening to them and to prevent bullying from big
corporates such as in Hutchison's case.
Originally published July 15, 2019
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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Intellectual property holding companies (IPHCo's) are registered with the purpose of managing and holding a business or group's intellectual property assets such as patents, trade marks, designs, copyright, trade secrets and other proprietary know-how.
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