The Constitutional Court's recent judgment decriminalising the private use of cannabis has garnered significant attention in South Africa. As predicted, the judgment has encouraged a number of existing and potential companies to create a brand for their business in order to grow and distribute cannabis in South Africa. Unfortunately, most of these businesses must delay their plans for their brand's trademark application – although possibly not for long.
South Africa is an attractive launch pad for many international companies when it comes to the protection and enforcement of intellectual property for their services or products that they wish to share with Africa. Even more attractive is South Africa's simple, quick and affordable patent system. There is no patent opposition in South Africa and the validity of a patent can be challenged only post-grant by way of the court system.
Proprietors that are interested in registering a shape or container mark should be aware of the kind of protection that a specific IP act affords them and ensure that they layer their rights in order to have the best protection as well as protection in perpetuity. The most important question for proprietors in this regard is whether they intend to use the shape for a short or prolonged period.
When a student is studying or planning to study at a university in South Africa, it is important that they understand their rights as an IP creator during that time. Many students, especially undergraduates, will argue that they do not participate in research and development in any manner and that intellectual property is merely a module for law students. However, all students may be IP creators without being aware of it.
In order to build a brand, one of the most important steps is to register a trademark. The first step is to conduct a search of the Trademarks Register to ensure that the trademark does not infringe registered rights. Provided that the results of this clearance search are favourable, the next step is to file an application for registration. However, this is not the final step, as action can be taken for trademark infringement only once the trademark has been registered.