THE FULL STORY:
What is Intellectual Property law, and where does it come from? We have the answers for you.
Also known as IP law, Intellectual Property law is the set of rights, protections and methods of legal relief applied to a specific asset class that relates to a creator and/or owner's establishment and defence of, among other things, their original inventions, works of literature, music, design, slogan, logo, software and trade secrets. Legal control of these assets becomes established through; the creator's cognition or by transfer or registration of ownership.
The earliest iterations of modern Intellectual Property law as we know it dates back to Medieval Europe, where associations of artisans known as guilds were granted the bureaucratic right to control entire industries, thus keeping, for instance, the right to make horseshoes in the firm grip of only one group of horseshoe makers in the region. Over time, this idea of intellectual property has grown into a complex system of rights and regulations that works hand in hand with sectors relating to innovation, commerce and creativity.
In South Africa, we practice four main branches of Intellectual Property law namely; Trade Mark, Patent, Copyright and Registered Design. We at De Beer Attorneys offer specialist legal counsel in all these areas and are well-versed in African and international legal principles. Since we are experts on the topic, we have created a short and engaging breakdown of each area of Intellectual Property below. Keep scrolling to learn more.
A trade mark can be defined as a class of intellectual property that is composed of a recognisable sign, design, colour, shape, pattern, container, domain name, numeral, expression or any combination of such that identifies products or services from a particular source and distinguishes them from others. Common examples of a trade mark would be a logo or slogan, such as the sunny golden arches of the McDonald's 'M' logo, the iconic curves of the original Cola-Cola bottle or the punchy Nike slogan "JUST DO IT".
While getting to place the spiffy "TM" (or "R" upon registration) insignia at the top right-hand corner of your mark is an enticing enough pull to initiate your trade mark application, there are a plethora of more significant reasons to conclude this valuable registration process for your brand which we would love to share with you. By successfully registering a trade mark, you will gain the exclusive right to use this mark in its registered industry or trade mark 'class' which will set your brand apart from its competitors.
Once you have secured trade mark rights for your brand, these rights may exist permanently, subject to required renewal typically every ten years, its continued use in the marketplace and retention of its distinctive qualities. In some cases where these requirements are not satisfactorily met, interested parties may initiate a formal application to contest the validity of your trade mark rights. However, the benefits to securing trade mark rights still far outweigh the risks, as displaying protected and cohesive branding over time builds goodwill within the marketplace, allowing customers to build a relationship with your products that reinforces positive brand identity and trust.
Are you an individual or a business owner wondering how to protect your trade mark? We at De Beer Attorneys would gladly assist with your trade mark requirements. We offer a full-scale trade mark service, including thorough trade mark searches, filings and prosecution, along with trade mark assignments, renewals and recordals. In addition to these trade mark prosecution services, we offer our clients impactful trade mark litigation and enforcement representation.
Patent rights are a pretty impressive feat to achieve, but they can also be pretty complicated to obtain - we would like to simplify the concept and process of being awarded these rights for you.
Patents are exclusive usage rights to the technical invention of a product or process that introduces an innovative method of achieving an end goal or provides a solution to a technical pain point. For an invention to be considered patentable under South African law, it must be novel, innovative and functional. Well-known examples of patents are the Wright Brother's aeroplane, Thomas Edison's light bulb, the controversial COVID-19 treatment medication, Ivermectin, Netflix's game-changing streaming model and KFC's method of deep-frying chicken.
In South Africa, we grant two types of patent rights namely; provisional and complete patent rights. A provisional patent is a form of a patent application that functions as a short-term measure allowing an inventor to tentatively secure an innovative concept for one year before its expiration. This form of a patent requires less detail than its complete patent counterpart and is a great option for applicants who are still in the ideation phase of their patent and have not yet completely solidified the functionality of their invention. The one-year validity period also allows clients to explore the commercial value of their patent idea before committing to the financial undertaking of a complete patent application.
On the other hand, a complete patent is a type of patent application that is significantly more detailed, technical, enforceable and commercially profitable than a provisional patent and includes claims and illustrations of the invention. A complete patent is valid for 20 years, provided annuity fees are maintained. Complete patents can function as incredibly valuable assets to possess and provide serious leverage in the marketplace since they are easily commercialised and grant patent holders the right to produce your invention or license its use to third parties.
South Africa is a party to the Paris Convention and PCT filing model. In our jurisdiction, we practice a depository patent filing procedure, which means that any patent applications filed in this jurisdiction are not subject to a considerable examination, making South Africa a favourable and affordable region to register patent rights.
Our expert patent team assists clients with comprehensive patent searches and assignments, patent renewals and recordals along with technical patent drafting and the specialised prosecution process for patent applications. Are you embroiled in a patent dispute? Our award-winning team also provides clients with exceptional legal representation in patent litigation and enforcement matters.
Does a patent application feel like it is not the right fit for your invention? Let's dissect registered design rights to discover if this particular avenue of intellectual property protection is more suitable for you.
In South Africa, registered design rights concern the visual aspects of an object, such as its shape, pattern, texture and configuration, both singularly or in combination. There are two types of registered designs; aesthetic and functional designs. Aesthetic designs must be novel and focus solely on the appearance or form of an article and not its underlying purpose or principle. Functional designs should also not be seen as commonplace and although there is a corresponding focus on the appearance of the design, more significant emphasis rests on certain visual features that contribute to the operation of the design.
A well-known example of an aesthetic design is the wildly popular Van Cleef & Arpels Alhambra pendant, and a specialised circuit board would be a common example of a functional design.
What are the requirements for a valid registered design application? This application process mandates that the design be novel and that the design application be submitted within six months from its release date to the public.
Aesthetic design rights are valid for fifteen years, while functional design rights are valid for ten years in our jurisdiction. South Africa is a party to the Paris Convention. This membership means that applicants may file their design application in additional jurisdictions six months after the earliest priority date or up to six months after the design has been released to the public.
We assist our clients with the prosecution processes related to ownership of registered designs in addition to offering specialised representation in design litigation and enforcement matters.
Copyright is a form of intellectual property that provides its owner with the exclusive right to copy, distribute, adapt, display, and perform creative work, usually for a limited period. Examples of material eligible for copyright protection include various kinds of creative work such as; literature, art, software, music, choreography, film or educational materials.
The timeframe for copyright validity varies depending on the type of material created. Where software or computer-based copyright works are concerned, authors will enjoy 50 years of copyright protection, beginning from its initial publication date. Authors of artistic work enjoy copyright protection for their entire lifetime, in addition to a supplementary 50 years of copyright protection which will begin at the end of the year that the artist dies. Much like software-based copyright, rights relating to film and cinematographic material begin at the end of the year of its publication and persist for 50 years before lapsing.
As the oldest iteration of IP rights, copyright law forms the foundation for many of the categories of intellectual property law that are available to us today. When considering copyright law, it is vital to include the legal doctrine of fair dealings in the discussion. Fair dealings should not be confused with the doctrine of fair use, which is an American legal principle that does not apply in South African copyright law. The principle of fair dealing is a Commonwealth copyright doctrine that is applicable in the South African legal context. This legal principle provides for the limited usage of copyrighted materials without obtaining consent from its author to provide; criticism, analysis, news reporting, research, private study, education, parody, or satire. Fair dealing is a more restrictive and effectively defined doctrine than its American counterpart, fair use. Be that as it may, copyright infringement is always subject to the interpretation of the legal officer deciding on the matter.
Unlike most other forms of intellectual property, these rights do not require any formal registration to be enforceable (apart from cinematographic material) since these rights automatically accrue to the creator or commissioner of the works once the criteria in terms of copyright have been satisfied. What are the essential criteria which should be met to obtain valid copyright privileges in the global marketplace? Your work should be published in the public domain, reduced to a material form and considered original and distinctive.
While obtaining copyright privileges may seem simple, it often proves itself as a complex litigious quagmire when disputes arise concerning infringement and ownership. We have a comprehensive copyright offering at De Beer Attorneys, covering copyright assignment and prosecution (relating to cinematographic material), in addition to providing expert copyright litigation and enforcement services.
INTELLECTUAL PROPERTY LITIGATION
Intellectual Property infringement can result in detrimental effects on the economic livelihood of a business. Our top priorities when handling litigation matters are defending our client's interests and supporting them through the contentious litigation process. We pride ourselves on our stellar litigation and enforcement track record, in addition to our ability to foster transparent and supportive relationships with our clients throughout and following litigation proceedings.
The team at De Beer Attorneys possesses extensive experience in all areas of Intellectual Property litigation and enforcement. We are also skilled at handling litigation matters that deal with numerous forms of infringement or involve multiple areas of the law.
INTELLECTUAL PROPERTY STRATEGY & PORTFOLIO MANAGEMENT
Intellectual Property is an incredibly lucrative asset class for businesses and avid investors to include in their investment portfolios. We recognise that business owners, in particular, will continue to grow and diversify their intellectual property portfolio as their brand increases its market share. It is vital to prioritise developing a management strategy to control and protect these essential business rights and assets. By doing so, you and your business will be better equipped to secure its position in the market as it continues to gain more competitors in its field.
At De Beer Attorneys, we practice an ambitious attitude toward building a robust and commercially successful portfolio for our clients. Through prioritising multi-prong infringement protection and market-specific trend forecasting, we ensure longevity in the value of these protected assets. As an intellectual property law firm, attention to detail is our forte. This skill makes us incredibly adept at performing the due diligence required when purchasing intellectual property rights, guaranteeing that our clients get their money's worth in assets. Our team keeps detailed records of our client's intellectual property asset registers along with their required renewals, annuities and recordals to ensure these rights remain safely under their control, in addition to staying up-to-date with official journal entries to identify any potential infringements on your assets.
At De Beer Attorneys, intellectual property law is our core area of expertise, and we have the awards to prove it. However, Intellectual Property law does not exist in a vacuum, and considering it governs the use of valuable assets, it often applies in conjunction with other areas of law, most commonly commercial law. Commercial law, also known as Trade or Mercantile Law, is an umbrella term that describes a group of laws or practice areas created to support and regulate businesses in their commercial endeavours. We pride ourselves on providing legal advice to our clients that safeguards their IP rights while making good business sense.
We assist our clients with a broad offering of commercial remedies concerning their intellectual property, such as; drafting and negotiating agreements such as restraints of trade, non-disclosure agreements (NDAs), letters of demand, licensing and development agreements, data and privacy-compliant corporate governance documentation, technical contracts in addition to contracts of sale and purchase. We also provide expert brand valuation services and handle the bureaucracy relating to the exchange control protocol concerning intellectual property assets. We guide our clients on any regulatory measures that may apply to their business and intellectual property, provide opinions on commercially-sound intellectual property portfolio management and expansion, along with the execution of the requisite due diligence, verification and valuation processes relating to these often intangible assets.
Intellectual Property law often exists hand-in-hand with innovation. As a result, this area of practice regularly applies in combination with Technology law. Technology law is a body of laws that functions across all streams of innovation, governing the public and private development and use of technology together with the data it generates.
At De Beer Attorneys, we assist our clients with the technology law and intellectual property law legal aspects in respect of their innovations. We provide holistic legal counsel relating to various spheres of software law, assist with negotiating and drafting ironclad licensing and development deals, provide representation in litigation matters relating to breaches in regulatory requirements, data and privacy issues along with handling drafting and review of technical and smart contracts. We also guide our clients concerning regulatory compliance and assist with drafting disclaimers and usage policies.
As our lives continue to migrate online, the need for legal remedies and regulation surrounding our online footprint has become increasingly urgent. Cyberlaw is an incredibly exciting and dynamic body of laws that governs the technological, electronic and data-driven elements of the Internet and how these sectors relate to our usage of these tools when online.
Since much innovation today involves the Internet, intellectual property law has undoubtedly become intertwined with this emerging area of law. We can provide our clients with assistance in Cyberlaw-related matters concerning a broad range of services, including the drafting of smart contracts for usage on the blockchain and more traditional forms of e-trading, assisting in the protection and licensing of cloud-based software, representation in litigation matters regarding online defamation and breach of privacy or data regulations, guidance on savvy and compliant online financial trading practices along with a strategy for the enactment of compliant data protection, privacy and cybersecurity policies.
A trade secret can be defined as confidential information that is only known to a select group of people, is commercially valuable and therefore is eligible to be sold or licensed. The value of this information must lie in the fact that it is a secret to everyone outside of its select group, and it may be of current or potential value to be considered valid. A famous example of a trade secret is the recipe for KFCs fried chicken. Fun fact: the brand decided to patent its process of preparing its world-famous chicken, too!
We at De Beer Attorneys assist our clients with crafting practical strategies to build protection against improper acquisition of these cardinal rights. In addition, we assist with drafting watertight non-disclosure agreements for interested parties to conclude and have expert intellectual property litigators on hand to assist should any of our clients find themselves involved in a trade secret litigation matter.