Intellectual property (“IP”) refers to creations of the mind which are recognised by the law. They are exclusive rights given to authors, inventors and businesses for their literary and artistic works of authorship, useful and ornamental inventions and valuable information.
There are different kinds of IP in law such as, trade secrets, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create, and they are granted in terms of statutory and common law.
What does an IP right protect?
Trade secrets protect information and ensure that unauthorised acquisition, use or disclosure of such information in a manner contrary to honest commercial practices by others is regarded as an unfair practice.
Patents are used to protect the functional aspects of an invention and they are exclusive rights granted for an invention it provides the patent owner with the right to decide how or whether the invention can be used by others.
Copyrights are used to describe the rights that creators have over their work. Work that is covered by copyright includes books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.
A trademark is a brand name, a slogan or a logo. It identifies the services or goods of one person and distinguishes it from the goods and services of another. A trademark must be registered.
You will need to choose the most suitable IP right to effectively protect your work.
You can protect your invention using multiple types of IP rights. You are also able to use all for rights mentioned above to protect one product.
An example, KFC. The brand, “KFC” is a trademark. The recipe for the actual chicken is a trade secret, while copyright law protects the packaging art. Both a design patent and a trademark can protect the colours and the drawings on the KFC boxes.
You can use one of more of the rights to protect your products, but it is important to single out which aspect of your invention can be protected.
Also, you need to be creative with the naming of your product for trademark purposes as you cannot trademark words which are of everyday use. An example is that of a popular South African rapper you wanted to trademark the concept “Fill up” as he was filling up stadiums, but it was rejected as it was too much of an everyday phrase. We fill up our cars with petrol and we will up baths with water.
IP in a business contract
- The inventor may make use of different legal agreements such as a nondisclosure agreement, a non-compete agreement or a confidentiality agreement to protect their invention to ensure it doesn’t end up in the wrong hands and to protect their interest.
- It is important to consider the question of IP whenever you enter a contract. You need to make sure that the contract addresses IP issues sufficiently to meet the needs and hopes of your business.
- If you enter a contract to develop an invention, ensure that the agreement specifies whether you or your company owns the invention outright or is only entitled to use the invention for a specified purpose.
- If specific terms about IP are not included in a contract the general position is that the creator of the invention under the contract remains the owner of the IP.
- Most employment agreements state that an employee’s inventions become the property of the Employer.
How can we help?
- We can assist with contract drafting to protect your rights
- We can help you identify the correct intellectual property right to use and apply to your product / invention; and
- We can assist you with conducting searches and applying for a trademark for your product / invention.
The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. It is meant purely for educational discussion and does not amount to legal advice. For specific legal advice, please consult a legal practitioner prior to application.