Do you have a unique product you’ve invented, or a genius business idea you want to prevent others copying? You know you need to protect your intellectual property, but should you file a copyright, trademark or patent?

What is intellectual property?

According to the World Intellectual Property Organisation (WIPO), intellectual property (IP) refers to creations of the mind, like inventions, literary and artistic works, as well as symbols, names, images and designs used in commerce. Intellectual Property is divided into two categories:

  • Industrial Property – including trademarks and patents
  • Copyright – including literary and artistic works.

What is a trademark?

A trademark is simply a brand name, tagline or logo. Such trademarks are used to differentiate your product or service from others in the marketplace, making them distinctive and recognisable. Trademarks can lend an air of credibility to a product or service, and are often used as Badges of Origin (to indicate where goods or services originate).

Registered trademarks in South Africa are protected under the Trade Marks Act No. 194, 1993. A registered trademark is one which has been registered with the Companies and Intellectual Properties Commission (CIPC), and is recorded in the Register of Trade Marks. Unlike registered trademarks, which are protected by the Trade Marks Act, trademark infringements (unauthorised use of trademarks) against unregistered trademarks can only be defended in terms of common law, which offers limited protection. Registered trademarks must be renewed with the CIPC every ten years.

South Africa is a member of the Paris Convention for the Protection of Industrial Property, an international intellectual property treaty. In terms of the Paris Convention, trademark applicants in South Africa can use the date on which their trademark was first filed in South Africa as the effective filing date in another signatory to the Convention, providing the applicant files the application within six months. While this can expedite or facilitate the registration of trademarks in other countries, South African trademark owners must still register their trademarks in the individual countries in which they seek trademark protection. While there are indications that South Africa could soon join, the country is not yet a signatory to the Madrid Protocol. Says the World Intellectual Property Organisation – the body which administers the Protocol – the Madrid system offers trademark owners the possibility of having trademarks protected in signatories to the Madrid Protocol (known as the Madrid Union), by filing one trademark application directly with the trademark owner’s national trademark office.

Pending trademarks (those which are in the process of being registered with the CIPC), are denoted by the ™ symbol, while registered trade marks are denoted by the ® symbol. Note that it’s an offence in terms of the Trade Marks Act to use this symbol for unregistered trademarks.

What is a patent?

A patent grants an inventor exclusive intellectual property rights to an invention. ‘Patent’ refers specifically to the certificate granted to the patentee, or the inventor applying for protection. The patent prevents others from, amongst other things, making the product, using the technology involved, or importing the invention.

According to the Patents Act No. 57 (1978), a patent may be granted for any invention which involves an innovative step, and can be used in trade, industry or agriculture. An invention is considered ‘new’ if it doesn’t form part of the ‘state of the art’ immediately prior to the date of the invention. Significantly, computer programmes and software are excluded from being patented in South Africa.

Protection via patents is granted for a limited period of twenty years, in the Republic of South Africa only. Recommends the CIPC, inventors considering exporting their products internationally should apply for patents in the individual countries in which their products will be sold. South Africa is one of 142 countries which are presently signatories to the Patent Co-operation Treaty. While the Patent Co-operation Treaty cannot grant international patents, it does streamline the processes involved in the filing, searching and examination of patent applications. Says the CIPC, the actual granting of patents is the jurisdiction of the Patent Offices in the particular countries where intellectual property rights via patent protection is being sought.

What is a copyright?

A copyright is an exclusive right granted by the law to the creator of an original work, for example an author, songwriter or artist. A copyright includes the right to copy, distribute, adapt or perform the work. Although there are some commonalities between the laws of different countries, each nation has particular laws regarding copyright, and copyright is licensed on a territorial basis.

In South Africa, copyright is governed by the Copyright Act No. 98 of 1978. Works which can be copyrighted in South Africa include literary works; musical works; broadcasts; sound recordings; art works and computer programmes. Copyright is granted for a period of 50 years:

  • After the death of an author (plus protection during his/her lifetime), in the case of literary works
  • After materials were first made available for sale, in the case of computer programmes
  • After the date of its first broadcast, in the case of film works.

International Copyright Law is enshrined in the Berne Convention for the Protection of Artistic and Literary Works. South Africa, as a signatory to the Convention, must adhere to certain minimum standards of national copyright legislation, as set out in the Convention. The Berne Convention extends copyright protection from a creator of an original work from one country in the Berne Union (i.e. signatories to the Berne Convention), to other countries in the Union.

Copyright is denoted by the © symbol.

It is important to note that ideas cannot be copyrighted. Ideas need to be transmuted into material forms – a book, painting or sound recording, for example. It is the material form itself which is subject to copyright.