Intellectual property is well protected in the South African environment.
Four principal types of intellectual property enjoy statutory protection in South Africa: patents, designs, trademarks and copyright.
A patent may be granted for any new invention or idea. To obtain protection for an invention, it must constitute an inventive step that has not already been used, made known or made available to the public anywhere in the world.
Applications for patents are made to the South African Companies and Intellectual Property Commission (CIPC) and may be made by the inventor or by any other person who has acquired the right to apply from the inventor.
A patent is limited to the country in which it has been granted. Generally, this right entails the granting to a patentee of the right, in the particular country, to prevent other persons from making, using, exercising, disposing of, offering to dispose of, or importing the patentee’s invention. In South Africa, the duration of a patent is 20 years, subject to the payment of annual renewal fees.
South African law provides for registration of designs that are intended for both aesthetic and functional purposes. Application is made to the CIPC for registration of a design. Grant of a registered design confers upon the proprietor the exclusive right to exploit that design for a specified period.
An application for registration of a trademark must be filed with the CIPC.
In order to be protected as a trademark, a mark must be clearly distinguishable as identifying a particular product, must not mislead consumers violate public order or morality and may not be the same as, or similar to, any another registered trademark.
Once a trademark is registered, no person may, without the authority of the registered proprietor:
- use a mark that is identical or confusingly similar to the registered trademark on the goods or services covered by that registered trademark;
- use a mark that is identical or confusingly similar to the registered trademark on goods or services that are similar to those covered by that registered trademark; or
- use a mark that is identical or confusingly similar to registered trademark that is well known in South Africa on any goods or services, if the use of the infringing mark would be likely to take unfair advantage of, or be detrimental to, the distinctive character or repute of the registered trademark, regardless of any confusion or deception.
In terms of the Copyright Act, protection is automatically conferred on an original work; registration is not required. Copyright may subsist in literary, artistic or musical works, sound recordings, films, computer programs, broadcasts, satellite transmissions and published editions of works.
To be afforded copyright protection, the work must have been created by a ‘qualified person’. This includes citizens of South Africa, residents and persons who are domiciled in South Africa as well as citizens, and residents and persons who are domiciled in any country that is a signatory to the Berne Convention. Where a work is created by a person who is not a ‘qualified person’, protection is also afforded where the work is first published in South Africa or one of the other listed countries.
In general, copyright in a work will subsist for 50 years from the date of first publication of the work.
Some significant judgments have been issued in recent years by South African courts in disputes involving manufacturers of motor vehicles and components, on issues including design and trademark infringements and passing off. The issue of generic or replacement parts has given rise to substantial litigation, as has the issue of dilution of trademarks by the use of the image of a vehicle bearing the mark in advertisements for products such as car polish and replacement parts. The High Court has also granted an order against the unauthorised copying of a parts numbering list by a rival manufacturer of replacement parts.
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