*This feature was compiled by Helene Viljoen, attorney and director of law firm Helene Viljoen Incorporated.

“Knowledge is the crux of tomorrow’s worldwide struggle for power.” This statement by futurist Alvin Toffler was enunciated in his book, Powershift: Knowledge, Wealth, and Violence at the Edge of the 21st Century.

In it, Toffler explains that we live in a knowledge-driven society. The adage ‘knowledge is power’ rings true, and ideas are increasingly becoming a source of income and progress. In this knowledge-driven world, it has become more important than ever to protect your ideas and their ability to make money.

That is where South Africa’s body of intellectual property (IP) law comes in. This article summarises IP law principles that protect your ideas and related economic interests.

• What is intellectual property?

Simply put, IP refers to intellectual creation. Works that could be someone’s IP include literary works, artistic works, inventions or designs. Computer code, designs, symbols, names and images or videos are further examples of what could be classified as IP.

Once an idea has been documented and brought to life in physical form, it may be subject to IP rights.

• What is intellectual property law?

This field of the law protects the rights of those to whom IP belongs. This includes protection against their IP being used, reproduced, or exploited for commercial gain without their consent.

South Africa’s IP law acknowledges that the creator of IP may transfer his status as IP owner to another. This must be done in writing to be effective.

The law provides various mechanisms for protecting IP rights. These can be divided into five categories: Copyright, patents, trademarks, designs and trade secrets.

• Copyright

Copyrights vest automatically in the owner of an original work as soon as that work has been reduced to tangible form. In other words, copyright does not have to be registered to be protected.

Literary works, musical or artistic work, sound recordings, films and computer programs are examples of works that may be subject to copyright. The duration of copyright is 50 years from either the year in which the work was created or the year in which the author died.

❖    Trademarks

• What is a trademark?

The term ‘mark’ is defined in the Trademarks Act 194 of 1993 as:

“Any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned.”

• What is the purpose of a trademark?

Trademarks are signs that distinguish the goods and services of the trademark holder (also called its ‘proprietor’) from other goods and services. Trademark law is the subsection of IP law that protects company names, logos, slogans and symbols – in short, it protects the holder’s branding and recognisability.

• How does the law protect trademarks?

South African common law recognises the protection of any trademark that is used in commerce. However, the Trademarks Act indicates that a mark can only enjoy the act’s bolstered protection if it has been registered with the South African Registrar of Trademarks.

• Registering a trademark

The Companies and Intellectual Property Commission (CIPC) administers the registration of trademarks. In terms of guidelines on the CIPC website, those who seek to register a trademark must follow four steps.

Step 1: Register as a CIPC customer.

Step 2: Deposit funds into your CIPC account.

Step 3: This step entails a search of the Trademark Register to determine whether the mark you wish to register is available. A basic search is free, but a more specialised search costs R190.

Step 4: Applicants may lodge their trademark applications electronically. The CIPC website also provides guidance for manual applications.

• Trademark classes

It is important to note that the goods and services in relation to which a trademark may be registered were acknowledged in the internationally binding Nice Agreement in 1957. Categories have since been created to classify goods and service trademarks accordingly. The World Intellectual Property Organisation’s website lists the categories and prospective trademark holders should identify the categories applicable to their mark before applying for registration.

• Costs of applying for a trademark registration

A fee of R590 is payable for each category.

• Duration:

A trademark is valid for a decade after registration, whereafter registration must be renewed.

• Patents

Patents protect inventions.

Once patent rights have been granted for an invention, nobody other than the holder may make, distribute or sell it without the rights holder’s permission.

• What is an invention?

In terms of the Patents Act 57 of 1978, an invention is an innovative creation which involves an inventive step, and which creation is capable of being used or applied in trade, industry or agriculture. An invention typically adds to society’s knowledge and provides a new way of doing something, or offers a new technical solution to a problem.

An inventor who wants to file for a patent may do so electronically via GlobalIPCo. Patent protection is renewed annually for up to 20 years.

• Costs

A provisional patent application costs R60, while a complete patent application costs R590.

• Designs

Designs are different from patents in that patent rights protect an invention’s function, method or working. Design, on the other hand, protects an article’s appearance and aesthetics.

To obtain maximum IP protection, experts generally advise that design protection be used in combination with trademarks, patents and copyrights.

• When will a design be capable of registration?

Two types of designs may be registered. One is an aesthetic design and the other is a functional design. An aesthetic design becomes capable of registration if it has a unique shape, configuration or ornamentation that is visually appealing. A functional design’s shape or configuration is necessitated by its function.

• Costs of a design registration application: R240.

• Duration

Aesthetic designs are legally protected for 15 years and functional designs for 10 years from the date of application.

• Trade secrets

This type of IP refers to information that has an economic value kept secret by the owner. The economic value must specifically subsist in the fact that the information is not generally known or readily ascertainable by others.

There is no specific law regulating trade secrets in South Africa and it cannot be protected by means of registration with any government or official body.

The measure of protection offered to trade secrets relies on the owner’s ability to keep it confidential.

To that end, trade secret holders may insist on prospective business associates undertaking to abide by a non-disclosure agreement before discussing their trade secrets. Such an agreement classifies trade secrets as confidential and ensures that parties with whom it is discussed keep it that way.

In conclusion, the value of ideas, innovation and creativity keeps increasing as society evolves. To bolster the protection of your IP, ensure that you are up to date with developments in the field of IP law and that you implement all possible measures to safeguard your IP portfolio.

Disclaimer: The above is not intended to be, and should not be misconstrued as, legal advice.