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.
As online consumer confidence grows in South Africa, the online market is becoming an increasingly attractive space for counterfeiters and fraudsters. Counterfeiting not only affects consumers and brand owners, but can also weaken a country's economy and impact its ability to attract foreign investment. However, consumers have the antidote to counterfeiting and, as such, must make sure to use it.
In recent years, the South African craft beer industry has grown rapidly. Larger commercial beer companies have been heavily affected by this shift in the market and have thus started to acquire craft breweries. In order to prevent the term 'craft beer' from becoming diluted in the near future, many remaining craft breweries feel that the market should be completely transparent. As such, it is surely only a matter of time before South Africa adopts a certification process to protect the nature of 'true' craft beer.
In order to protect trade secrets, companies should, among other things, require that anyone exposed to trade secrets sign a non-disclosure agreement. Where this party is an employee, a restraint of trade agreement may also be used. However, the courts are reluctant to enforce excessively onerous restraint of trade agreements, as these restrict employees' rights to practise their trade and make a living.
South Africa has an abundance of natural resources and, as a result, a large proportion of patent applications are filed covering a process or apparatus used in the production of a product. In terms of patent law, there is no substantive difference between the patentability requirements for a patent for a product or a patent for a process. However, there are important differences between product and process patents when it comes to enforcement.
Micro-organisms are fast becoming a focus area in South African patent practice. The reason for this is not based on a resurgence of the amount of biological inventions relating to the use of micro-organisms, but rather the complex legislative framework that must be negotiated in order to ensure the validity of a South African patent based on micro-organisms indigenous to the country.
Registered trademarks have often been considered the only way to protect logos. However, since the inclusion of Class 32 in Schedule 3 of the Design Regulations, logos are increasingly being protected as both trademarks and registered designs. The protection afforded by each is different, but not contradicting, and registering a logo as a design right can have many advantages.
One of the downfalls of parallel importation is that owners and manufacturers do not have proper control over what the parallel importer does with the brand and product. This therefore raises the question of whether parallel importation is lawful in South Africa. Case law suggests that imports which have been altered could constitute trademark infringement and, by extension, counterfeit products.
The almost infinite nature of trademarks is the reason why iconic characters, such as Batman and Wonder Woman, will almost certainly never enter the public domain. A trademark registration gives the rights holder the exclusive right to use the trademark and prevents the unauthorised use by a third party of not only an identical or confusingly similar trademark, but also a company, close corporation, business, trading or domain name.
The Liquor Products Act, which governs and regulates the labelling of wine products, includes specific regulations and a labelling guide which prescribe what can be incorporated on a wine label. Trademarks constitute the name of a product and are therefore subject to Section 12 of the act. As such, the name of the wine or the trademark must not be misleading. How this is applied and enforced in practice may be tricky, as many wines have interesting names.
The Copyright Amendment Bill was first published for public comment in 2015 and was predominantly met with a large amount of criticism. Two years later, a revised bill has been tabled in Parliament. While a number of previous issues have been addressed, the bill's drafters have retained and even created a number of new problems, which must be addressed before the bill is suitable for adoption.
The manufacturer of a new craft beer may use an interesting name and a creative logo, but does this mean that its brand is protected? If the manufacturer does not protect its brand, another party will likely try to obtain the IP rights – especially if the brand increases in popularity. A clash will undoubtedly result, which could be avoided by the manufacturer securing trademark protection for its product name and logo in good time.
It is safe to assume that almost everyone in the world knows that Ivanka Trump is the name of US President Donald Trump's daughter. Following reports that a number of companies have filed applications to register the trademark IVANKA, the question has arisen as to whether there is any legal provision preventing such a registration. On the face of it, there is nothing to prevent a third party from doing so in South Africa, even though Trump herself is using and has registered the name elsewhere.
Patent attorneys are frequently confronted with inventors who believe that they have created a viable perpetual motion machine, none of which have thus far succeeded in disproving the laws of thermodynamics. Section 36 of the Patents Act (57/1978) provides for this eventuality, stating that the registrar will refuse any application that is frivolous on the basis of it claiming as an invention "anything obviously contrary to well established natural laws".
In order for a trademark to be registrable under the Trademark Act, it must be capable of distinguishing the goods or services of the party in respect of which it is registered or proposed to be registered from the goods or services of another. If it loses this ability or function, it can no longer act as a trademark. As such, trademark owners must strive to save their trademark from 'genericide' – that is, from becoming generic and losing all rights that may have been developed at great cost and effort.