Intellectual Property Law

Intellectual Property Laws confer a number of exclusive rights upon inventors, authors and other Intellectual Property owners, and not upon the intellectual work itself. In South Africa, Intellectual Property Laws are governed by four Acts of Parliament; The Trademarks Act, the Patents Act, the Designs Act and the Copyright Act.

The Trademarks Act governs the use of trademarks. By definition a trademark is a distinctive sign, which is used to distinguish the products or services of different businesses. It may be a logo, a distinctive brand name or a slogan. A trademark identifies the goods or services of one person or company from those of another. Once a trademark has been registered nobody can use it or another mark that is similar to identify their goods. If they do so, then the owner of the trademark may take legal action.

The Patents Act lays out the rules for the granting of patents. Patents are the exclusive rights granted to an inventor for an invention. The invention must show novelty, inventiveness, and usefulness, that is to say that it must be a product or process that provides a new way of doing something, or offers an inventive solution to a technical problem. When granted, a patent gives the patent holder an exclusive right to stop others from commercially exploiting the invention for a certain period of time. In South Africa, like most countries of the world, this is 20 years from the date of the first application for a complete patent to the Patents Office. The onus is upon the patent holder to prevent others from using or copying the invention, and not on the Patent Office or the police force.

An industrial design right protects the shape, pattern, ornamentation, or configuration of an industrial object (e.g. spare parts, furniture, or textiles) and is governed by the Designs Act. Under the Designs Act, designs fall into two categories, Aesthetic Designs and Functional Designs. An aesthetic design has to be new and original and it must be able to be produced by an industrial process. A functional design must be new and not commonplace, its shape or configuration must be dictated by its functional and it must be able to be produced by an industrial process.

Once registered with the Companies and Intellectual Property Registration Office the owner of a aesthetic design is protected for 15 years, and the owner of a functional design for 10 years.

Another category of intellectual property law is Copyright. The only items of intellectual property that need to be registered under the Copyrights Act are Films or Videos. With all other categories of creative or artistic works, such as books, music, paintings, poems, photographs, and software it is sufficient to mark the end of the work with a copyright sign. This may be shown as “Copyright J.Briggs 2006” or as “© M.Mason 2006”. It gives a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time, normally 50 years after the death of the holder.

In summary, Intellectual Property Laws confer certain rights upon the owners of that property and not on the property itself. The rights themselves are property and may be sold, licensed or disposed of in any way in which the owner of those rights wishes.