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What makes up “IP”

When we draft contracts, we are often asked to “make sure that we own the IP”.  In most instances, clients don’t understand the concept of “IP” or what it is made up of. As we now live in a word of convergence, it is becoming more and more necessary to identify exactly what the “IP” comprises and be able to identify the different ‘ingredients’ of the cake, and who owns each ‘ingredient as well as the metaphorical cake itself.

The words “IP” mean “Intellectual Property”. This is a right in our law that enables a person pr company to prevent others from conduct which would give them an unfair trade advantage. IP is divided into a number of different categories, the more important ones including copyright, trade marks and domain names, know-how, trade secrets, patents and registered designs.

A single product can often be the subject of a number of different forms of protection.  For example, with a computer, each of the following features can be protected as IP:  (i) patents for the hardware, (ii) registered designs for the shape of the casing, (iii) trade marks and (iv) copyright in respect of the software and manuals.

Copyright

Copyright in South Africa is conferred and regulated by the Copyright Act, 98 of 1978.  Unlike trade marks or patents, copyright does need to be registered. Where it exists, it does so automatically.  Broadly speaking, copyright is the right given to the owner of a copyrighted work not to have that work copied (reproduced) without authorisation.  The types of works covered by copyright are literary works (e.g. articles, reports, tables and other content), computer programs (software), artistic works (e.g. drawings, photographs, etc.) and musical works.  For copyright to exist, the work must be: original, in a material form, produced by a South African or in South Africa and be of a certain morally accepted nature.

Trade Mark

A trade mark is essentially a means of identifying a product, whether goods or services.  It is often a brand name, but it can be any sign capable of being represented graphically, including a picture, colour, shape, pattern, or any combination of these.  Trade marks are protected by common law and by statute.  The relevant legislation is the Trademarks Act, 194 of 1993.  The Trademarks Act defines the function of a trademark as distinguishing one person’s goods (or services) from those of another.  It follows that trade marks are registered for certain goods or categories of goods or services.

Domain Name

In the offline world, your trademark represents your identity in the market place, making you and your products recognizable to your customers.  In the online world of the Internet, domain names have come to fulfil the same role as a trademark as your presence on the Internet starts with your domain name.  Importantly, when attempting to reach a company on the Internet, the domain name is often the first component of any search.  It is accordingly of vital importance that the domain name reflects the company’s full corporate and/or some or all of its product names, or at least a recognizable part thereof.  Generally, domain names are registered on a first come, first serve basis by various regional entities that have been allocated the responsibility of domain name registration.

Patents

A patent is a monopoly or an exclusive right granted for a specific period of time by the State to an inventor in exchange for a full disclosure of the invention to the public.  This monopoly entitles the inventor to prevent others from using the invention within a defined territory (e.g. South Africa).  After expiry of the period, members of the public are free to use the invention.  In order to be patentable, a device, method or process must fulfil three basic requirements:  it must be novel (new), of practical use (useful on a practical level) and inventive (it must not be so similar to what is already available that it required little or no ingenuity to make the invention).

Registered Designs

The visual appearance of an article as judged by the human eye can be protected by a form of registered design (e.g. a computer casing).  It is a monopoly granted by the State to the owner of a design for a specific period of time in exchange for disclosure of the design to the public for their use.  A registered design relates to the shape or appearance of an article.  Thus an application to register a design is based on drawings, photographs or other pictures which clearly illustrate the shape or appearance of the article.

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