Smit & Van Wyk Patent, Trademark & Registered Designs

Intellectual Property

Patents, Designs, Trademarks & Copyright

Intellectual property can be referred to as the creations of human intellect. There are numerous types of intellectual property and some countries recognize more than others. The most well-known types of intellectual property are patents, trademarks, copyright and trade secrets. Intellectual property law encourages the creation of  intellectual goods by giving the creators rights to the goods they created. These economic incentives allow people to profit from the information and intellectual goods they create, stimulating innovation and contributing to the technological progress of countries.

History of Intellectual Property

Ancient Greece
The earliest records relating to intellectual property dates back to the 6th century BCE (Before Common Era) or 600 years BC (Before Christ), from Sybaris in Ancient Greece. Bakers were granted exclusive right to make their unique culinary inventions, also known as bread.

The Statute of Monopolies was an Act of the Parliament of England which established the concept of intellectual property. The Statute of Monopolies was the first statutory expression of English patent law which evolved from letters patent, issued by the monarch to grant monopolies over particular industries to skilled individuals.  The Statute of Monopolies was passed on 29 May 1624.

The birth of WIPO
During the early 1800’s, the idea of global protection of intellectual property rights started to gain momentum and by the year 1883 that the Paris Convention brought cooperation among international jurisdictions. Three years later, the Berne Convention extended the same protection to authors and within half a decade trademarks were also granted international protection through the Madrid Protocol. Resulting offices from the conventions later merged into a central governing body, the United International Bureaux for the Protection of Intellectual Property which later became the office we now know as the World Intellectual Property Organization (WIPO).

World IP Day

World Intellectual Property Day is observed annually on 26 April.  In 2000, WIPO’s member states designated April 26 (the day on which the WIPO Convention came into force in 1970) as World IP Day with the aim of increasing general understanding of intellectual propeprty. World IP Day is a great opportunity to get people interested in issues relating to IP.

All types of Intellectual Property

Intellectual property is protected in law which enables people to earn recognition or financial benefit from what they create. The intellectual property system aims to promote an environment in which creativity and innovation can thrive through patents, designs, trademarks, copyright…

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.

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.

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.

Distinguishing your goods or services from the goods or services of others. Trademarks protect your brand as it is know to the public, whether it be your name, logo, slogan or even packaging. Once a trademark is registered in South Africa, provided it is renewed every 10 years, it can last forever. Examples of trademarks include: business name, product name, campaign name, slogan, logo, shape, three-dimensional marks, holograms, motions / multimedia, positions, gestures, olfactory (smells / scents), sounds / tunes, tastes, textures.

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.

Geographical indications
Signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods. Well known geographical indications include: Tequila (Mexico), Rooibos (South Africa), Champagne (France), Parmesan Cheese (Italy), Scotch Whisky, Darjeeling Tea, Swiss Watches. 

Trade secrets 
Protection for confidential information which may be sold or licensed.  The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection. Trade secrets include manufacturing processes
, software code, inventions, designs, formulas, ingredients, devices or methods. Some of the most famous trade secretes from around the world include: (1) The Krispy Kreme donut recipe, (2) The New York Times bestseller data system, (3) Google search engine algorythm.

Indigenous knowledge / Traditional knowledge
Traditional knowledge is the lasting wisdom, teachings and practices of indigenous communities which have been passed from generation to generation. Traditional knowledge recognises, understands, integrates and promotes indigenous resources. The protection of indigenous knowledge, and the holders of such knowledge, awards rights against exploitation. This will also include ensuring that communities receive fair and sustained recognition and, where appropriate, financial remuneration for the use of their knowledge.