Business owners often fail to conduct trademark availability searches before they register their company name at the Companies and Intellectual Property Commission (CIPC). The CIPC considers only identical or confusingly similar company names that are contained on the company names register (and not those that are contained on the trademarks register) to be potential blocks to registration. Therefore, company names that proceed to registration may infringe on trademark rights as set out in the Companies Act.
In an age where business is conducted online, trademarks are commercialised through websites and social media pages and consumers want to deal with businesses online instead of face to face, a business' virtual address is of the utmost importance if it wants to drive traffic to its website and conclude commercial transactions online. So, what happens if a third party registers a domain name that incorporates an existing trademark? How can trademark owners begin to take action and enforce their rights?
According to the Copyright Act, for copyright to subsist in a work, the work must be original and reduced to material form. However, if ideas and innovation are the result of the shared lived experience of the common person, how can it be determined whether a work is 'original' as defined in, for example, the Copyright Act? In order to be original, a work need not be innovative or new, but rather the result of the author's own skill, time and effort expended in creating the work.
South Africa has seen a dramatic rise in entrepreneurial activity, with many seeking to launch new products in the marketplace. However, with the success of a product comes the risk of the idea being copied and advantage being taken of the already established route to market, thereby affecting the original product's sales and brand. Therefore, any party that creates or legitimately distributes a product that they believe will be well received must take the appropriate steps to protect it.
A granted patent is a highly lucrative commercial tool in the hands of the patent applicant. However, inventors are not necessarily entitled to apply for a patent, especially in employment contexts. Inventors are therefore advised to consult with a patent attorney when they are uncertain whether an invention falls within the scope and course of their employment. It is further advisable to enter into negotiations with employers regarding compensation for the invention.