BUSINESS BRIEF: SOUTH AFRICA
BUSINESS BRIEF: SOUTH AFRICA Patents
How do you register or secure patent rights, and is national or international coverage most appropriate?
A patent attorney should be consulted to assist with the assessment of patentability and draſting of the patent specification. Te patent specification will then be lodged, in accordance with a strict timeline, in countries where protection is required. In terms of coverage, patent applicants typically consider business requirements and costs.
What are the costs for obtaining a patent, and what are the costs of defending it?
Spoor & Fisher offers very competitive rates for the draſting of patent specifications, ranging from R13,000 ($1,400) to R25,000 ($2,800). Preparation cost is dependent on the type of invention and more complex inventions will necessitate higher fees.
Where foreign patent protection is concerned, the cost may be anything between R18,000 ($2,000) and R120,000 ($13,300), depending on the country, length of the specification, foreign associates charges, etc. Prosecution costs should be expected in each country aſter filing the application.
Depending on the nature of patent litigation, costs could range between R800,000 ($90,000) and R2 million ($225,000).
Where can you find information on existing patents in your jurisdiction?
Information can be obtained from the paper patent records or the website of the Companies and Intellectual Property Commission (CIPC):
http://patentsearch.cipc.co.za/patents/patent.aspx. For cross-checking results, we propose that Spoor & Fisher oversees CIPC searches.
Is there anything unusual about the patent law that companies should be aware of, and what are the most common mistakes businesses make?
South Africa is a non-examining patent office, with no substantive assessment being done by our patent office. Te onus is on the patentee to ensure that the patent is valid and enforceable. Amendment is possible before and aſter grant of the patent.
Tere is a nine-month moratorium aſter the grant of a patent, during which proceedings typically may not be brought against an alleged infringer. Tere is no extension of the patent term in South Africa. Common mistakes include the disclosure of an invention prior to filing a patent application.
What are the key threats to patent owners, and what is the best strategy if you suspect someone is infringing your patent?
Infringement: if there is suspicion that a third party is infringing your patent, a patent attorney should be consulted without delay. A non-threatening letter (Section 70 letter) can be sent to the alleged infringer.
Revocation: proceedings can be brought against a patent by a third party in order to revoke the patent.
Trademarks
How do you register or secure trademark rights, and what protection does it grant? Trademark rights can be divided into two categories, namely statutory rights and rights afforded by common law. In order to secure statutory trademark rights, the mark must be registered. Common law rights are acquired through use.
Trademark rights enable the proprietor thereof
to prevent any unauthorised party from using a trademark that is either identical or confusingly similar to the protected mark in relation to goods and services that are the same as, or similar to, the goods and services for which the protected mark has been registered. Owners of registered marks who can show their marks to be well-known in the Republic are entitled to an even wider ambit of protection.
What are the costs for registering a trademark, and what are the costs of defending it?
132 World Intellectual Property Review Annual 2014
Te cost of registering a trademark varies depending on the requirements subject to which the Registrar of Trade Marks may be willing to accept an application or a possible opposition to the registration by a third party. If no difficulties are experienced in the registration process, the total costs are likely to be in the region of $900 to $1150.
All costs relating to the enforcement of a trademark will vary on a case-by-case basis. Tere are a number of variables such as the specific choice of attorneys and counsel, their hourly tariffs and input of time required to deal with a matter.
What are the key threats to trademark owners, and what is the best strategy for dealing with infringement?
Te best strategy will differ from case to case, eg, infringement proceedings to be dealt with in the High Court, domain name objections before the relevant domain dispute resolution authority, company name objections before the Companies Tribunal and trademark oppositions before the Registrar of Trade Marks.
Generally, all contentious matters have as their first step the sending of a cease and desist or other appropriately worded letter of demand.
What are the most common mistakes trademark owners make?
Many applicants believe their trademarks are
registered by simply filing applications with CIPC, only to realise later that they have not yet acquired registered rights. It is important to maintain control over a trademark portfolio, to ensure that registered marks are renewed every ten years and that the details recorded on the register of trademarks are updated whenever changes take place.
Trademark owners should also ensure that the specific manner in which they are using their trademarks is correct and that they are not through their own doing causing their mark to lose its distinctiveness. Also,
www.worldipreview.com
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