Utility Model vs Patent Protection
April 12, 2011
Brand Names, Domain Names, Geographic Indicators
A utility model is a specific type of intellectual property right. It is available in various countries and just like a patent, protects the invention, but it has a shorter lifespan than a patent and doesn’t have all the requirements needed for a patent. Examples of countries where the utility model is recognized include that of Japan, Austria, Indonesia, Malaysia, Spain, Australia, and Germany.
In essence, the utility model is a monopoly that the inventor receives for a specific period in which the inventor then teaches the invention to another person with normal skills in the particular art. The teaching is of such a nature that the person taught will be able to perform the invention.
Utility models are often referred to as innovative patents or minor patents. Most of the patent offices don’t do in-depth examinations of applications and simply require that the utility models meet the formal requirements. In most instances, the same items or processes not patentable will also not qualify as utility models. One of the main requirements is that the utility model must be new and thus not part of prior art. This means that the utility model may not have been published or used before application for such. In Spain, however, absolute novelty is not required. In South Africa the functional design can fit the category of utility model and it has a lifespan of ten years.
Utility models are often used for mechanical innovations and are well suited for small and medium businesses which want to make minor changes to existing inventions. Known by different names in the various countries utility models are more affordable than patents, easier to register, and have shorter lifespan periods.
Contact us at Smit & Van Wyk Intellectual Property Attorneys to assist you in registering a utility model in South Africa.
Trade Marks & Domain Name Disputes
March 9, 2011
Domain Names, Trade Marks ™ ®
It has become increasingly important for a business to have a virtual presence in cyberspace. It has therefore become common practice for a business to register its established trade mark as a domain name in order to benefit from the trade mark’s reputation and navigate Internet users to its website.
As domain names are registered on a “first come, first served” basis, a trade mark owner may find that its trade mark has already been allocated to another Internet user. Previously, in these cases, the trade mark proprietor had to resort to instituting civil litigation based on trade mark infringement or passing off.
The new Alternative Dispute Resolution (ADR) procedure, however, offers trade mark owners a more efficient and cost effective remedy against the registrant of a domain name.
A person who registered a domain name must submit to the ADR proceedings if a complainant can show, on a balance of probabilities, that:
- It has rights in respect of a name or a mark;
- The mark is similar to the domain name in question; and
- In the hands of the registrant, the domain name is an “abusive registration.”
The rights which a complainant is required to have are not limited to registered trade mark rights, but include intellectual property rights, commercial, linguistic, religious and personal rights protected under South African law, and is not limited thereto.
A domain name registration will be abusive if a domain name, which was registered or acquired, alternatively is being used in a manner which takes unfair advantage of, or is unfairly detrimental to the complainant’s rights.
The South African Institute for Intellectual Property Law (SAIIPL) http://www.saiipl.org.za is an accredited dispute resolution provider and adjudicates most domain name disputes in the .co.za domain.
Once a dispute has was filed with SAIIPL and has commenced, the registrant of the domain name is afforded 20 days to file a response with SAIIPL, who will forward the response to the complainant. Thereafter, the complainant may file a reply to the response within 5 days from receiving same.
Within two days after this period, an adjudicator will be appointed. Adjudication is done on documentation submitted, no oral submissions are allowed and the adjudicator must reach a decision within 14 days after being appointed. A domain name dispute can therefore be concluded within approximately six weeks.
The adjudicator will decide whether the complainant has made out a case as required or not and the complaint will either be refused or the registrant will be ordered to transfer the domain name to the complainant.
If you have rights in respect of a name or mark which has been registered as a domain name by another, contact Smit & Van Wyk to file a domain name dispute.
By Salomé le Roux
Contact Details for Smit & Van Wyk:
Tel:
+27 (0) 12 349 7800
Fax:
+27 (0) 86 619 0493
E-mail:
enquiries@svw.co.za
Physical Address / Courier
Block A Apex Corporate Park
Quintin Brand Street
Persequor Technopark
Meiring Naudé Avenue
Pretoria
0184
South Africa
Internet plagiarism Lawsuits
January 18, 2010
Copyright ©, Domain Names
If you want to know whether your website copy is unique and not copied by another website, you can copy and paste the particular URL (web address) into the space provided at a copy checker such as Copyscape.com.
As an alternative type in a unique line from your web page in the Google search box. If nothing comes up, the website is still safe. If however you find that copying has taken place, contact a copyright lawyer who will check whether the content has been used with full citation and link back.
If not, the copyright lawyer will contact the website owner and ask for the removal of the information and explain why. If no response is received further legal action will be taken. The first step is often to check the domain name holder at WhoIs.com.
The contact details can be used to get in touch with the owner directly. The next step can be to contact the hosting company to inform them about the plagiarism of the website.
If still no reaction the copyright lawyer will take the case further to the search engines and then relevant authorities for compensation or action to be taken against the perpetrator.
Domain Names Transfers
August 24, 2009
Domain Names
What are the results of the procedures, and are they binding?
A domain name is either transferred or the complaint is denied and the respondent keeps the domain name.
It is also possible to seek cancellation of the domain name.
There are no monetary damages applied in UDRP domain name disputes, and no injunctive relief is available.
The accredited domain name registrars – which have agreed to abide by the UDRP – implement a decision after a period of ten days, unless the decision is appealed in court in that time.
The panel decisions are mandatory in the sense that accredited registrars are bound to takethe necessary steps to enforce a decision, such as transferring the name concerned.
However, under the UDRP, either party retains the option to take the dispute to a court of competent jurisdiction for independent resolution.
In practice, this is a relatively rare occurrence.
Contact Details for Smit & Van Wyk:
Tel:
+27 (0) 12 349 7800
Fax:
+27 (0) 86 619 0493
E-mail:
enquiries@svw.co.za
Physical Address / Courier
Block A Apex Corporate Park
Quintin Brand Street
Persequor Technopark
Meiring Naudé Avenue
Pretoria
0184
South Africa
Why so many domain name disputes?
August 24, 2009
Domain Names
There is no agreement within the Internet community that would allow organizations that register domain names to pre-screen the filing of potentially problematic names.
The reasons vary, ranging from allowing easy registrations to stimulate business, to the practical difficulties involved in determining who holds the rights to a name, to the principle of freedom of expression.
Furthermore, the increasing business value of domain names on the Internet has led to more cybersquatting, which results in more disputes and litigation between the cyber-squatters and the businesses or individuals whose names have been registered in bad faith. – WIPO
