Intellectual property 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.
What We Offer
As a specialist intellectual property law firm, we deal exclusively with patents, designs, trade marks, copyright and plant breeders’ rights. We have the knowledge, resources and experience to provide advice on all fields of practice relating to intellectual property. We also provide advice on the commercial rights attached to each of these forms of protection, as well as intellectual property litigation.
We file patent, trade mark, and registered design applications for our South African clients into foreign markets, while also assisting overseas patent attorneys that wish to file in South Africa or the rest of Africa. Many of our intellectual property attorneys are also qualified engineers or scientists, making them extremely skilled in their fields of practice and able to provide excellent advice on complex legal matters to our clients.
Patents
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. A patent grants exclusive rights for an invention, providing the patent owner with the right to decide on how the invention can be used by others. In exchange for this right, the patent owner discloses technical information about the invention to the public. A South African patent may be granted for an invention that is new, inventive and useful. If your invention meets these three requirements, subject to certain exclusions, a patent may be granted.
Designs
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. Protects the ornamental or aesthetic aspect of a product. A design may consist of three-dimensional features such as the shapes, or of two-dimensional features such as patterns, lines or colors.
In South Africa, the designs register is split into aesthetic and functional. An aesthetic design protects the appearance of an article, irrespective of the aesthetic value thereof. A functional design protects the appearance of an article which appearance involves a function to perform.
Trade Marks
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. According to the South African trademark law you can register your unique mark to protect your business interest from being exploited and potentially harmed through misuse by unauthorised entities.
Once you have registered your trademark, the South African trademark law requires you to renew this every ten years to stay in force. However, provided you continue renewing your trademark registration in South Africa, your rights to the trademark may last indefinitely.
Copyright
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. The rights that creators have over their literary and artistic works. Works covered by copyright range from books, online content, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings. In South Africa, Copyright does not have to be registered. Copyright vests in the author of a work once the work is created in a material form.
Plant Breeders’ Rights
A form of intellectual property rights granted to breeders of new plant varieties for protection of their varieties against exploitation without their permission. To be granted rights, a plant variety must be new, distinct, uniform, stable and have an acceptable denomination (variety name). Well known plant species protected by plant breeders’ rights include: (1) the peppadew plant which classifies as a fruit, (2) flowers such as carnation varieties bred for high tolerance to fusarium, (3) wheat varieties bred for enhanced productivity and varietal improvement, (4) and seedless table grapes that are easier to produce.