ummeli Read in English Lees in Afrikaans Read in Setswana Read in isiXhosa

banner 1 english

 

juta-online-shop-banner

 

PATENTS AND TRADEMARKS - FAQ's             Back to home page

 

If you own a business, a registered trade mark will protect your business and/or its brand/s against use by another on identical or similar products (goods or services). It protects against the use of your identical trade mark and similar trade marks.

If the success of your business rests on a new technical idea, it is important to ensure that the idea cannot be used by a competitor, and for this you or your business will need a patent - the issue of patenting should be considered as an integral part of your overall business strategy together with factors such as profit potential, finance, production and marketing.

A relatively small number of Law Firms practise trade mark and patent law, and can help you avoid problems before they arise, as well as protecting your rights and interests at all times.

  1. What is a trade mark?
  2. What is a patent?
  3. How does a person apply for a patent?
  4. How does a ‘provisional specification’ differ from a ‘complete specification’?
  5. What happens if the specification is accepted?
  6. What happens if the specifications are rejected?
  7. What is the difference between a patent and a design?       

 

1. What is a trademark?

 

A trade mark is a sign which is capable of being represented graphically i.e. a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the above, that is capable of distinguishing the goods and/or services to which it is applied from identical or similar goods and/or services - it identifies the goods and/or services of the owner of the mark, providing protection to the owner of the mark by ensuring exclusive rights to use it to identify his/her goods and/or services.

• The basic requirement for registration is that the mark should be ‘capable of distinguishing’. Many marks, such as the names of companies or individual firms, are not accepted for registration because they are not represented in a special way.

• The registration of trade marks is governed by the Trade Marks Act, 1993, and since goods and services are divided into various classes by the Act (there are 45 goods and services classes), it is important that a trade mark be registered in the correct class/es. The Act extends protection to trade marks falling outside their class in cases where the goods and/or services are so similar as to cause confusion or deception of consumers. See also Copyright Act, and Counterfeit Goods Act.

• Trade marks are registered for 10 years which registration can be renewed for further periods of 10 years in perpetuity, provided the mark remains in use and has not fallen foul of the requirements for removal of trade mark in terms of the Act.

 

2. What is a patent?

 

• A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. The patent provides protection for the invention to the owner of the patent. Patent protection means that the invention cannot be commercially made, used, distributed or sold without the owners consent. The registration of patents is governed by the Patents Act, and in terms thereof the invention must be new, involve an inventive step and be industrially applicable in order to be registrable.

• The extent to which the idea can be protected depends largely on its nature and whether it has been developed or previously disclosed. The law offers no protection to an inventor or creator until he has described his thoughts in writing or produced a first model or specimen and then filed the description. Only then will he/she prove that they had the idea first. The patent must be renewed annually from the third year and it is important to pay an annual renewal fee to keep it in force. The patent expires after 20 years from the date of application, whereafter it falls into the public domain.

Top of Page

 

3. How does a person apply for a patent?

 

• To establish a claim for a patent you must show that your invention differs in an important way from anything that has been patented or disclosed in the world before and is capable of being used or applied in trade, industry or agriculture.

• This involves lodging a patent application at the Patent Office, which is best done by a specialist in the field, namely a patent attorney.

Top of Page

4. How does a ‘provisional specification differ form a complete specification?

 

Provisional Specification - once you have decided that you have a good idea, and before you make known the invention to others, you should file a provisional patent application. You will need to enlist the aid of a patent attorney. After you have submitted a provisional specification, you have a year (plus an extra three months possible extension) from the date of submission to file a complete specification.

Complete specification - you may from the outset lodge a complete specification. Two copies of the complete specification are required at this stage, with full details, and where necessary precise drawings describing the invention. Where you file your own application the complete specification must be signed by a patent attorney or agent.

Top of Page

5. What happens if the specifications are accepted?

 

• If your specification has been accepted it will be advertised as such in The Patent Journal, a journal published by CIPC on a monthly basis, which contains the patents, trade marks, designs, cinematograph films that have been filed in the last month in South Africa.

• It includes information on the approved and disapproved patents on a monthly basis. The Patent Journal is available from the Government Printers in Pretoria.

Top of Page

6. What happens if the specifications are rejected?

 

  • If you disagree with the Registrar, you can ask for interview to put your case or your attorney can lodge an appeal with the Commissioner of Patents, and if you are still not satisfied, you may, in accordance with the Rules of the High Court governing appeals, appeal to appropiate division of the High Court. Thereafter any further appeal must be made to the Supreme Court of Appeal.

    Top of Page

7. What is the difference between a patent and a design?

 

Patents are governed by the Patents Act,1978, whilst designs by the Designs Act,1993.

• When only the appearance of an article is to be protected, a design can be registered. There two types of design –an aesthetic design and a functional design. As a designer you must file a design application in the Designs Office before selling or offering for sale or using any articles bearing the design in question or before it described in any form to the public.

• A patent is a novel, inventive and industrially applicable invention and no right exists without registration. A design deals with functional or aesthetic features, and as with a patent no rights exist without registration.

Copyright – literary works such as articles, speeches, poems and the like; musical works such as songs; artistic works such as sculptures, photographs or other works specified in the Copyright Act do not have to be registered. The sole right to benefit from them called copyright generally belongs to the creator throughout his/her life. The duration of copyright differs amongst the different categories of work itemised in the Copyright Act, and is generally linked to the lifetime of the author. The owner of copyright can licence or sell some or all of these rights at any time he chooses. After death, these rights vest in the heirs (if there are heirs).

Top of Page

ron wheeldon attorneys banner

rm-tucker-banner2