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Understanding Intellectual Property

Intellectual property (IP) is a term that describes a bundle of rights afforded to an intangible asset such as a scientific or artistic creation – often referred to as a “creation of the mind”.

These creations come in many different forms: an invention, a work of art, a product design, software code, a piece of music or a brand, and are afforded intellectual property rights that legally protect the originator or owner of those works as well as the public. IP rights further aim to encourage research and investment into new creations and technologies that can benefit society and increase economic growth.

Organisations of all sizes and industries are increasingly recognising the value of digital and intellectual property.

It is a misconception that only large corporations need to understand the importance of intellectual property. In fact, for start-ups in particular, investing the time to develop an IP strategy and portfolio and conducting IP risk assessments can influence funding opportunities (The One Brief). Ultimately, the value of your business’s intangible assets, of which IP is a significant part, is the number you are using to raise money, sell your business, or attract financing (Forbes).

The four most common types of IP, Copyright, Trade Marks, Patents and Designs are briefly discussed below.

Copyright

Copyright is the right given to a creator of an original work (or their employer) that entitles them to prevent others from reproducing or publishing a substantial copy of that work without their consent.

Many types of works are protected by copyright, such as literary works – from novels and poems to instruction manuals, software code and databases; artistic works; computer programs; musical works, sound recordings; radio, television broadcasts and films.

Copyright however relates only to the material (or digital) expression and not the underlying idea or concept and can only be enjoyed if the work is not a mere reproduction of an existing work.

Like other forms of IP, copyright is an asset that may be sold (assigned) or licensed to others or even put forward as security for a loan. Unlike other forms of IP, copyright does not need to be registered and generally lasts up to 50 years after the year in which the work is first published or the creator dies.

Trade Marks

A trade mark is any symbol, such as a trade name, logo or slogan, which serves to distinguish your products and services from a competitor’s. In other words, a trademark is a source identifier.

For a trade mark to be recognised it must be both non-descriptive and distinctive so that it cannot be confused with an already existing mark.

In most countries, a trade mark registration lasts for 10 years from the date of filing and may be renewed indefinitely for further periods of ten years at a time. As a general rule the value of a trade mark increases over time as the trade mark is used and acquires a reputation in the market place and often becomes one of the most valuable assets of a business.

Patents

A patent protects the concept underlying a new product or process. For an invention to qualify for patent protection, it must be novel (worldwide), inventive (i.e. not obvious) and useful (having some beneficial use).

A patent is essentially an incentive or reward by which the State grants an inventor a 20-year monopoly to exploit and profit from their idea in exchange for disclosing it on a public record (the patent register) and in doing so, ultimately improving society by having this invention form part of the public domain.

Patents can be used in various ways – to prevent imitation products, to earn licensing royalties, to avoid legal action or become part of a “patent pool” where different entities contribute and share their innovations with each other.

Patents may not be appropriate for all businesses in terms of cost and life span, but can also be a very powerful enforcement tool and offer certain businesses a competitive advantage in their industry.

Registered Designs

A registered design protects the way something looks. It is generally applied to interesting shapes or forms that are novel and unique and could relate to anything- a furniture piece, textile design, piece of jewellery, lighting design, even a website landing page or a circuit board lay-out.

In South Africa, there are 2 types of designs that can be registered – some designs are registered based on their function and others purely for their aesthetic appeal.

Aesthetic designs are granted exclusively for the aesthetic appearance of an article and are judged by the eye, for example, an article of jewellery or the pattern applied to a fabric.

Functional designs include features that are dictated, at least to some extent, by the function of the article; for example, the shape of a drinking glass or chair, the mechanism of a clutch pencil or the shape of a mould.

An aesthetic design lasts 15 years, and a functional design 10 years, from the date of application.

Intellectual property offers tailored rights to all industries and businesses.

Need advice on this? Von Seidels would be happy to chat to you. Contact us at innovation@vonseidels.com

Von Seidels is an intellectual property law firm specialising in patents, trademarks, copyright, designs, trade secrets, licensing, and related areas of IP throughout Africa. Based in South Africa, Von Seidels also has offices in ARIPO (Namibia), OAPI (Cameroon) and Nigeria.

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