It is important to know that there are several categories of Intellectual Property in South Africa. The overall concept of Intellectual Property though relates to ideas or creations of the mind.
Your ideas can take the form of an invention, a trademark, a new design, a song or a poem. Your ideas are known in the legal profession as your Intellectual Property, and you can be protected against anyone else using them without your permission.
The type of protection you are entitled to depends on the category of intellectual property. So, for example, an invention would fall under the Patents Act, a logo under the Trademarks Act and a poem under the Copyright Act. A fourth act covering new designs is the Designs Act.
Patents may be granted for new inventions as long as the inventor satisfies certain ground rules. Briefly, a patent may be granted for any invention that proves novel and can be used in trade, industry or agriculture. If conferred, the patent is normally valid for a period of twenty years. Patents are granted by the Patent Office at the Companies and Intellectual Property Registration Office in Pretoria.
A Trademark is normally a brand name, a logo or a slogan – examples are Coca Cola, the apple of Apple Computers and “Enjoy every moment” of Wimpy. In the case of Coca Cola the shape of the bottle is also a distinctive feature. Each of these provides a distinct identity in the marketplace.
Once a trademark has been registered with CIPRO a registration certificate is issued, and the owner has the exclusive right to that trademark in perpetuity, provided it is renewed every ten years upon payment of a renewal fee.
There are two types of industrial designs that may be registered in South Africa, viz. aesthetic designs and functional designs. An aesthetic design has to be new and original, there must be beauty is in its shape, configuration or ornamentation, and it must be able to be produced by an industrial process.
A functional design has to be new and not commonplace, the shape or configuration is necessitated by its function, and it must be able to be produced by an industrial process. Registering a design with CIPRO is a fairly involved process and it is advisable to do so through an Intellectual Property Attorney. Once registered, aesthetic designs are protected for 15 years and functional designs for 10 years.
Copyright differs from other forms of Intellectual Property in that it is not a right that needs to be registered (except in the case of cinematographic films or videos, which may be registered if desired). In order to be copyrighted the idea has to have been put down in material form – that is to say the written word or a recording.
As such, an abstract idea cannot be copyrighted. Unless another party has commissioned the work, it normally remains the property of the creator, and no-one may print or use it without the owner’s permission. It is normally sufficient to place a © with a name and the year at the foot of the article or creation.
Copyright for written works remains the property of the owner for 50 years after his/her death, and computer programs for 50 years after they were first made known to the public. Please note that in certain circumstances patents may be obtained for computed programme which protect the manner of functioning of the programme, as opposed to merely protecting the actual source code in terms of copyright.
Should you have any patent, trade mark, design, or copyright enquiries, please contact Smit & Van Wyk Intellectual Property Attorneys in South Africa.
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