Article provided by Absa
When you hear the words ‘intellectual property’, your mind automatically fills with other words like ‘ideas’, ‘new concepts’, ‘business’, and ‘innovation’ We sat down recently with Taryn Simpson, Head: Group Intellectual Property Counsel, and unpacked a few of the complex laws and guidelines around intellectual property and everything that goes along with it.
When asked to define this term in the most simplistic way, Simpson quickly explained that it comes down to any property or ideas belonging to the mind.
She also noted that intellectual property has drastically changed over the past 10 years, “Competing brands such as Google, Microsoft and Apple have completely changed the industry and our mindset. We have massive companies working together on dual products and this has created a lot of grey space and other agreements between these big brands. You can have the best idea, but it’s all about who’s first to market.”
In order to help your ideas survive in this digital era, Simpson says that it’s important not to share them with anyone, “Don’t be free with information and if you do happen to share it, make sure that those people sign non-disclosure agreements. What I have noticed is a trend of people being more suspicious and hesitant to just give information away, because of the fact that we live in a digital era.”
At the end of the day, her biggest piece of advice to new business owners, is to become familiar with the various intellectual property offices we have in place around the country to protect intellectual property, and what the application processes entail. “Do your research before you even start working on your project, because it will give you an idea of when to start filing which documentation. This ultimately ensures that you’re empowered and protected when you start your business or launch your product. Let that process run side by side with your actual product creation and progression.”
If you’re already a business owner, Simpson says that you should ensure that your shareholders and related agreements are up to date and completed to fully reflect the intention of the parties so to avoid disputes at a later stage.
There are still a few misconceptions around intellectual property and what it entails. To understand it better, it’s important to go back to the start. There are four different types of intellectual property – trademarks, copyright, patents and designs. Simpson has found that differentiating between these four tends to confuse people. So, here’s a breakdown of each one, and what it means:
This is the easiest to explain, because we use trademarks in every aspect of our everyday lives. It includes everything from the brand of toothpaste we use, to the car that we drive. Our selection of trademarks speaks to who we are as individuals, because everyone has their preferred brand choices.
If we delve into it deeper, it’s important to note that trademarks are allocated on territorial ground. That means that the country where you apply for protection, is the only country where you’ll be protected. If you want to protect your brand in more than one country, you have to individually apply in each country.
If you’re looking to apply for a trademark of your own, or just doing some research, Simpson advises a visit to the Trademarks Office, based in Pretoria, to do a quick search. This will cost you somewhere around R200. If you find that your desired trademark is available, you are then able to start the application process.
“It’s important to note that in South Africa and Africa, specifically, from the day that you file for a trademark, it can take up to two years before the registrar examines it. You should use it in the meantime, as if it’s registered, but you’ll only receive the official documents at a much later stage. You may encounter a provisional refusal by the Registrar based on the findings, but you will have an opportunity to overcome the refusal by making representations on the usage during the time the trademark application was pending.
Where trademarks refer to the brand’s look and feel of a product, patents speak to the scientific formulas, technology, and processes of product manufacturing. The history of patents started out with new inventions – things that have never been seen before such as electricity, televisions, cellphones, and so forth. Nowadays, this also includes new formulas and changes that will improve the way already existing items work. Non-disclosure agreements come in to play here. They are also territorial and have to be applied for in individual countries, but they’re much more expensive to apply for than trademarks, starting from R25 000.
If someone in Japan happens to have the same idea as you do, and they beat you to launching it, the novelty is destroyed and you won’t ever be able to own that idea. Simpson adds that because patents are much less common than trademarks, this process runs much quicker from start to finish in South Africa – and in Africa as a whole. It is advisable to engage the services of a patent attorney to assist with the patent process and completing the relevant documentation. After you’ve filed, you have a further 12 months to work on your patent and make amendments to it, you can also designate countries outside of South Africa to extend protection to.
There are two types of design – aesthetical and functional. We can explain this by using the chair you’re currently sitting on as an example. Because we sit on it, it’s performing a functional role, but it also has an aesthetic role because the chair that you sit on at home, the chair you sit on in a restaurant, and the chair you sit on at the office – though its function remains the same, it looks and feels completely different.
Functional designs are protected for up to 15 years, while aesthetic designs last for 10 years.
According to Simpson, this is by far the most contentious form of intellectual property, because it’s so difficult to regulate. Very few countries in the world have formal Copyright Offices (unlike trademarks, patents and designs), which means that copyright automatically kicks in the moment you reduce something to writing, whether it’s a diagram, a few paragraphs, or even notes.
“The most important thing to remember around copyright is to preserve your dates. If you have email trails and evidence that you are the author of certain material, no one can fight you on the fact that it’s yours to own.”