Many celebrities extend their brands by venturing into various industries, such as Bonang Matheba who recently launched her own range of sparkling wine. While these endeavours can work well, they also create opportunities for individuals to infringe on the IP rights embedded in celebrities' respective ventures. As such, there are a number of IP rights that celebrities can use to maintain control over their brands and regulate how they are used by others.
South Africa has no plant patent system, as the Patents Act states that a patent will not be granted for any variety of plant. Therefore, new plant varieties are protected exclusively under the Plant Breeders' Rights Act. However, genetically modified plants could be patentable subject matter under the Patents Act, as they are not strictly classed as new varieties of plant.
An element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention. However, when considering the patenting of a life sciences invention in South Africa, a number of questions should be addressed in relation to, among other things, the invention's novelty, inventiveness and usefulness.
The Counterfeit Goods Act was proclaimed to enforce and protect IP rights holders against counterfeiting. The act enables certain IP rights holders and other persons with an interest in protected goods – including licensees, importers, exporters, distributors and duly authorised attorneys and agents – to act speedily and efficiently against persons involved in counterfeiting on either a criminal or civil level.
South Africa has significant exchange control regulations in place that restrict and require approval for payments in international IP licensing relationships. Typically, if an IP right in issue has been commercialised or if its commercialisation is imminent, exchange control requires an appropriately motivated valuation substantiating the price to be furnished.
A patent grants the holder an exclusive right or monopoly to exclude third parties from exploiting the patented invention for a limited period in a specific territory. This article discusses the nuances of South African law in this regard, including with regard to patentable inventions, patent longevity and the requirements for patent specifications.
South Africa has no specific legislation governing trade secrets or know-how, although they can be effectively protected under common law. Parties will often enter into agreements when transferring trade secrets or know-how between each other for any purpose. These agreements expressly protect the use and handling of information and set out the indemnities in respect of its loss or misuse.
Trademarks are a company's most valuable asset. Over time, they can appreciate in value and as a company's reputation grows, so too will the value of its trademarks. This article provides an overview of South Africa's trademark legislation and serves as a useful guide on, among other things, the trademark application procedure, buying and selling trademarks and company or close corporation name protection.
Under South African statute, the owner of copyright in a work is given the exclusive right to perform certain specified acts in respect of that work or to authorise others to do so, thus preventing unauthorised persons from performing those acts. However, only certain specified categories of work defined in the Copyright Act are eligible for copyright protection.
Crowdsourcing can be an exciting and cost-effective way for businesses not only to keep up with the latest consumer trends and preferences, but also to maintain a competitive edge in their existing market and beyond. However, ideas crowdsourcing may also expose businesses to IP risks. An idea or concept that is not properly managed may cause more harm than good to product and services R&D efforts. Therefore, it is crucial to have proper IP protection in place before undertaking crowdsourcing activities.
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.
Patent professionals often wonder whether to patent an invention or keep it confidential and hope that a third party does not copy it. As patents are a powerful commercial asset which may be licensed, sold, assigned or form the subject matter of a hypothec, the risk of having an invention reverse-engineered and freely copied must be carefully weighed against the controlled disclosure of the invention and the monopoly which issues from a granted patent.
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.
Graffiti is generally no longer considered to be a work of vandalism or an act of destruction of public property. Instead, it has become a marketable commodity, with some fashion labels and major corporations even using it in their advertising campaigns. However, graffiti's legal status as art has not been established, which begs the question of whether it can be protected by copyright and has raised a number of issues concerning its commercial use.
Rights holders often threaten to enforce their rights against others as a scare tactic while knowing that actually enforcing them would not be that simple. A prime example of this is when rights holders threaten third parties with a patent or design infringement action despite knowing that their patent or design is not necessarily valid or that the third party has a valid excuse for the alleged infringement. Fortunately, in South Africa aggrieved parties can defend themselves against these so-called 'infringement bullies'.
The Copyright Act does not require registration in order to acquire copyright for a particular work. Instead, copyright subsists automatically once a work has been completed, provided that certain requirements have been met. For example, a work must be original and in writing or a material form. In addition, the author must have been a qualified person when the work or a substantial part thereof was created.
A business's intellectual capital, particularly its patent portfolio, is one of many factors which should be thoroughly evaluated prior to entering into a licensing agreement or undertaking a merger or acquisition. While every commercial transaction is unique, during such an evaluation, a number of matters should be considered in view of the Patents Act.