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 assessing patentability and drafting the patent specification. The 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 of obtaining a patent, and what are the costs of defending it? Depending on the nature of patent litigation, costs could range
($66,500) and ZAR2 million.
patents in your jurisdiction? Information can be obtained from the paper patent
records or the website
What are the key threats to patent owners, and what is the best strategy if you suspect someone is infringing your patent? First is infringement. If there is suspicion that a third party is infringing your patent, a patent attorney should be consulted without delay. A non-threatening (section 70) letter can be sent to the alleged infringer. Second is revocation: proceedings can be
brought against a patent by a third party in order to revoke it.
between ZAR800,000
Trademarks How do you register or secure trademark rights, and what protection do they grant? Trademark rights can be divided into two categories: statutory rights and rights afforded by common law. In order to secure statutory rights, the mark must be registered. Common law rights are acquired through use. Trademark rights enable the proprietor to
of
the Companies and Intellectual Property Commission (CIPC):
www.patentsearch.
cipc.co.za/patents/patent.
Is there anything unusual about the patent law(s) that companies should be aware of, and what are the most common mistakes businesses make? South Africa has a non-examining patent office, meaning no substantive assessment is done there. Te onus is on the patentee to ensure the patent is valid and enforceable. Amendment is possible before and aſter grant. Tere is a nine-month moratorium aſter a
patent is granted, during which proceedings typically cannot be brought against an alleged infringer. Tere is no extension of the patent term in South Africa. Common mistakes include disclosing an invention before filing a patent application.
prevent any unauthorised party from using a trademark that is either identical or confusingly similar to the protected mark in relation to its registered goods and services. Owners of registered marks that can show their marks are well-known in South Africa are entitled to wider protection.
What are the costs of registering a trademark, and what are the costs of defending it? Registration costs vary depending on the requirements that the registrar of trademarks may be willing to accept for an application or a possible opposition to it by a third party. If no difficulties are experienced in the registration process, the total costs are likely to be in the region of ZAR 10,800 to ZAR 13,800. 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
108 World Intellectual Property Review Annual 2015
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 within the High Court of South Africa, domain name objections before the relevant domain name dispute resolution authority, company name objections before the Companies Tribunal and trademark oppositions before the registrar of trademarks. Generally, all contentious matters have as
their first step the sending of a cease-and-desist letter or other appropriately worded letter of demand.
What are the most common mistakes that trademark owners make? Many
applicants believe
their trademarks are
registered by simply filing applications with the 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, where trademark owners become aware of a third party using their protected mark in a generic manner, such use must be objected to.
Have there been any changes to the trademark law(s) in the last 12 months? Draſt legislation introducing the concept of ‘traditional knowledge’ into the Trade Marks Act has been approved by parliament, but is not yet in force.
www.worldipreview.com
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