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A patent is only as good as the enforcement of protection available.
South Africa has a track record of Patent enforcement which extends back some 150 years or more... |
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A trade mark is used to distinguish your goods or services from those of another.
The Trade Marks Act defines a “mark” as any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of these. A “device” is defined as any visual representation or illustration capable of being reproduced upon a surface.
Each trade mark application must designate a particular class depending on the goods or services in respect of which it is or will be used. A separate application must be filed for each class in which protection is sought.
A registered trade mark can be used to prevent others from using the same or a similar mark in relation to the same or similar goods or services. Generally speaking, such use is not allowed where it will cause confusion or deception in the market place.
Rights are acquired under common law where a trade mark is used without filing an application for registration. However, the advantages of a registered trade mark over a common law trade mark are significant. Mainly, it is easier to go to court to prevent third parties from infringing your rights. There is also a deterrent value against potential infringers. In addition, a registered trade mark receives more recognition as an asset in a business.
It is advisable to file an application for a trade mark registration at an early stage. However, there is no guarantee that a given mark is available for registration.
If someone else already has rights or an interest in a mark that is confusingly similar to your proposed mark it may prevent an application from proceeding to registration. Such a person can object to registration or even use of the trade mark on the basis that he has prior common law rights in a mark or that his mark has an international reputation and is well-known in South Africa.
Also, an earlier application for a similar trade mark in relation to similar goods or services will likely be cited by the Registrar of Trade Marks as blocking a registration.
To pre-empt these situations, or at least the risk involved, the following measures should be considered when there is an intention to commercialize a trade mark:
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a search on the Internet or other investigation in the relevant industry to establish whether anyone is using a similar mark in relation to similar goods or services; |
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a search can be conducted through the official records at the Trade Marks Office to determine whether there are any earlier filed marks which are similar and relate to similar goods or services; and |
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a search of the Companies Office official records can be conducted to establish whether any similar names have been registered for a company or close corporation.
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A trade mark registration will not expire provided its renewal fees are paid. These are due every 10 years, calculated from the date of the original application.
Trade marks may, like other intellectual property, be transferred by way of assignment. This must be done in writing and signed by or on behalf of the assignor. An assignment may be for some or all of the goods or services for which the trade mark is registered. Use of a trade mark may also be licensed.
The benefit of an earlier South African application filing date may be claimed for foreign applications (in most countries) where they are filed within 6 months from the local application.
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