The laws regarding South Africa trade marks are set out in the Trade mark Act of 1993. This South African law painfully describes a trade mark as “a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person”.
To put it more clearly, in South Africa a trade mark is a distinctive sign of some kind, which is used by a person, business organization or other legal body to enable its clients to recognize its products or services, and to distinguish them from those of others.
A trade mark is usually a distinctive logo, symbol, brand name, design or slogan. There is also a range of non-conventional trade marks comprising marks that do not fall into these standard categories. Non-conventional trade marks may be visible signs (eg. colours, shapes, moving images, holograms, positions), or non-visible signs (eg. sounds, scents, tastes, textures).
An example of this is the particular shade of turquoise used on cans of Heinz baked beans, which can only be used by the H. J. Heinz Company for that product.
In South Africa, trade marks are an important branch of intellectual property, and are a very important asset to many companies. A trade mark may only be defended under the South Africa Trade mark Act if it is registered with the Companies and Intellectual Property Registration Office in Pretoria. Under other circumstances it may be defended under common law.
Once registered in South Africa, no one else may use that trade mark or a similar one that could be confused with it. To register a proposed trade mark in South Africa you will first need to carry out a search to establish that the mark has not already been registered to another company or individual. This is carried out at the CIPRO offices in Pretoria. After establishing the novelty of the trade mark you will need to apply on forms TM1 and TM2 together with a registration fee of R266 .
Registration of your trade mark can be done on your behalf by a South African Trade Mark Attorney. As long as the application complies with all of the requirements you will be given an application date and reference number, which should be quoted in any enquiries regarding this matter.
It normally takes about 18 months for the trade mark to become registered in South Africa, but you may start using it as soon as you have received your copy of the application from CIPRO. If the application is accepted with no conditions then you must advertise the fact in the Patent Journal.
Trade mark attorneys in South Africa will be able to advise you on both the selection of trademarks and will carry out searches to ensure there is no conflict with earlier marks.
Registration of your trade mark offers you several advantages. It establishes your rights to the mark, even before you use it.
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