Intellectual Property Law
Patents, Trademarks, Copyright
Intellectual property law in South Africa refers to all legislation concerning patents, designs, trademarks and copyright protection. It is meant to protect the intellectual property of legal entities, as intellectual property can also carry significant value and is thus vulnerable for exploitation by outside parties. With the exception of copyright, intellectual property law in South Africa require for this property to be registered in order to qualify for protection. If you come up with a brilliant new invention, but do not register the patent, there is absolutely nothing you can do about it if someone else copies your idea and market it themselves. There are certain requirements that need to be adhered to before you can register something under the intellectual property law. The best advice is to consult with an expert in this field, such as Smit & Van Wyk Incorporated, in order to determine the best way to protect your intangible assets.
In terms of the South African Patents Act No. 57 of 1978, a patent may be granted for any new invention that involves an inventive step and that is capable of being used or applied in trade or industry or agriculture.
The rights conferred by a design registration are governed by the South African Designs Act 195 of 1993 (“the Designs Act”). In terms of the Designs Act, the protection afforded by a registered design relates to a design as applied to an article.
The Trade Marks Act 194 of 1993 (“the Trade Marks Act”) and the pursuant Regulations defines the mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing those goods or services from the same kind of goods or services connected in the course of trade with any other person.
The Copyright Act No 98 of 1978 provides that the following works, if they are original, are eligible for copyright: literary works, musical works, artistic works, cinematograph films, sound recordings, broadcasts, programme-carrying signals, published editions and computer programs.
More about Intellectual Property Law:
Patents – The first step is to file a South African provisional patent application for your invention. This is done to obtain the earliest possible date from which to claim rights to your invention, much like an option to protect your invention.
Designs – In South Africa, the designs register is split into two sections. Firstly, an aesthetic design protects the appearance of an article, irrespective of the aesthetic value thereof. Secondly, a functional design protects the appearance of an article in as far as its appearance is necessitated by the function that the article is to perform.
Trademarks – Once a trade mark is registered in South Africa, it needs to be renewed every 10 years to stay in force. However, provided you continue renewing your trade mark registration in South Africa, your rights to the trade mark may last indefinitely. A registered trade mark can be protected forever.
Copyright – In general, any original work made by a qualified person is eligible for copyright protection. Originality refers to the fact that the author must have created the work through the application of the author’s own creativity and labour. A qualified person refers to any national or resident of South Africa or a Berne Convention country.