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.
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.
The so-called 'fourth industrial revolution' is in full swing. Fields such as artificial intelligence and additive manufacturing are no longer a thing of the future, but rather an increasing part of everyday life in the form of smart devices, driverless cars and automated assistants. However, it is unclear whether South African IP law is equipped to keep up with the rapid technological developments driving this revolution.
Patent applications may be filed in the names of multiple joint inventors or co-inventors. All cited inventors must have contributed to the invention, although not necessarily in equal parts. To date, the South African courts have not had to deal with the question of what such a contribution entails, but it is generally considered that each contribution must consist of an inventive step which is not merely imparting knowledge that is known in the art.
Tattoos are becoming increasingly common and tattoo parlours now offer customers a broad spectrum of designs to choose from or the option to request a custom design. One interesting question that arises in this context is whether a tattooed person owns the copyright in their tattoo. Unless the copyright in the tattoo was assigned in writing, the answer is no.
For musicians, securing the protection of and ownership in their work is as important as the work's conception. In order to avoid costly mistakes, musicians should consult a suitably skilled attorney from the inception of their musical works so that sufficient measures can be taken to ensure that any agreements into which they enter are fair and that the ownership of their works remains vested in them, as the author.
The cost of obtaining a patent may seem exorbitant for individual entrepreneurs or start-ups, but IP protection may be critical to their success. Patent attorneys' fees are often comparably higher than those of other attorneys – so why pay a patent attorney to file a patent application?
A saga spanning more than five years finally came to an end when all disputes between the Agricultural Research Council (ARC) and the South African and Animal Improvement Association were settled. Underpinning the conclusion of this saga is a healthy dose of respect for copyright – the unregistrable, often forgotten, yet mighty IP right. The ARC was vindicated in the settlement and its contribution to livestock improvement over many decades was finally given the recognition that it deserves.
IP attorneys frequently hear from clients that want to copyright their ideas. However, copyright protection extends only to the material expression of an idea and not the idea, concept, procedure or method itself. This distinction between ideas and expressions has been the cause of much debate and even confusion; some authors argue that an idea cannot exist independently of its material expression, while others insist that the two are distinct.
The increase of internet usage on mobile smartphones has resulted in more than two-thirds of South Africa's population having access to social media. While social media can be regarded as a vital tool for marketing goods and services, many brand owners fail to identify its use as an area of concern for the sale of counterfeit goods online. With much more anonymity and far less red tape, counterfeiters are exploiting social media platforms as a tool for reaching unsuspecting consumers.
In a recent appeal against a decision to uphold an opposition against the registration of the trademark PEPPAMATES in view of the registered trademark PEPPADEW, the Supreme Court of Appeal had to consider when a descriptive mark is not a descriptive mark. The Supreme Court of Appeal's judgment has confirmed that where the prefix or first element of a word is in common use, the suffix or last element can be the distinctive element for trademark purposes.
Apps have become increasingly popular owing to users' desire to stay in touch with rapidly developing technology-driven content and services dissemination. They have been created to satisfy just about any need, from gaming to fitness, transport to live updates and shopping to socialising – whatever you require is out there at the tap of a button. However, before releasing an app, IP considerations must be taken into account.
The Johannesburg High Court recently had to decide whether transacting parties shared joint ownership of the copyright subsisting in a database of donors for a charity event organised by one of the parties. This case should have IP owners questioning where the ownership in the copyright subsisting in any original and protectable work that has arisen in the course of a partnership or joint venture truly lies.