Commercial Values & Intellectual Properties

June 8, 2011
Intellectual Property News

Commercial values in a business can include the intellectual properties such as patents, trademarks, and designs and also copyrights owned by that business. In many instances, a business has little or no commercial value without its intellectual properties.

The resources of the business, client and supplier lists, and profits should thus not only be the only factors taken into consideration when a person wants to calculate the commercial values of a business.

Putting a total on commercial values may be a bit more difficult. One for instance, cannot stop at the cost of patent or trademark registration, but must also consider the commercial value in terms of usefulness and marketability of for instance, a specific invention. License agreements and the income generated from such must be considered.

From the above information it can be seen that commercial values can be rather tricky especially if you want to get to a final figure because you want to insure or sell your business. The other end is also true. If you have to decide whether the seller’s price for a business is indeed worth it then you will have to consider commercial values such as domain names, business names registered and intellectual property such as trademarks as well.

The best advice is to get in expert guidance from experienced intellectual property attorneys to help you assess fair commercial values of the various intellectual properties owned by the business before getting to a selling price or purchasing offer total. For one, commercial value in terms of trademark rights is often exploited through franchising. When you thus want to sell a franchise the commercial values will be all the more important.

Smit & Van Wyk has an experienced team of intellectual property attorneys to assist with the setting up of license agreements, assignments, and registration of intellectual property rights, franchising and assessment of commercial values for the various intellectual properties.

Contact us for professional assistance today.

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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:

1. It has rights in respect of a name or a mark;
2. The mark is similar to the domain name in question; and
3. 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

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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

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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

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What is the nature of domain name disputes?

August 24, 2009
Domain Names

While designed to serve the function of enabling users to locate computers (and people) in an easy manner, domain names have acquired a further significance as business identifiers and, as such, have come into conflict with the system of business identifiers that existed before the arrival of the Internet and that are protected by intellectual property rights.

Domain name disputes arise largely from the practice of cybersquatting, which involves the pre-emptive registration of trademarks by third parties as domain names.

Cybersquatters exploit the first-come, first-served nature of the domain name registration system to register names of trademarks, famous people or businesses with which they have no connection. Since registration of domain names is relatively simple, cybersquatters can register numerous examples of such names as domain names.

As the holders of these registrations, cybersquatters often then put the domain names up for auction, or offer them for sale directly to the company or person involved, at prices far beyond the cost of registration.

Alternatively, they can keep the registration and use the name of the person or business associated with that domain name to attract business for their own sites. – WIPO

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

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