Are you using a logo, business name or even a signature which represents your brand, but you are not sure how best to protect it? First prize - file a trademark application!
A registered trademark can protect your business name, logo, signature or even a shape or a container that you designed for your goods, provided that it is a good brand. A good brand is one that will distinguish your goods or services from those of your competitors, so choose a "stand-out-in-a-crowd" brand.
The best way to protect your mark is to apply to register it, but you can use the ™ symbol next to your brand (even if you have not registered it) e.g. Joe Bloggs™. This creates public awareness that you own that brand.
Do I own the copyright?
Ever drawn a stunning new design and thought “Wow, how do I go about protecting this?”. As soon as you put pen to paper and, provided your creation is original (not copied), you own the copyright. No registration is required! “Original” simply means you used your own efforts and skills to create that masterpiece.
Just remember, copyright won’t exist in an idea alone (so jot that idea down or make a sketch or make the prototype). Remember, also, there are some exceptions to the general rule that the creator owns the copyright. For example, if you created the work during the course of your employment, the copyright will belong to your employer. But even this rule can be changed by agreement. Just make sure that you make your expectations clear upfront. Your clients may assume they own a design when they commissioned it. This will however, only apply in specific instances:
- Where you are commissioned to take a photograph, a drawing or a painting of a portrait, a sound recording or film and you are paid for the commissioned work.
Again, this can be changed if the parties agree otherwise. Rather discuss the ownership issues with your clients to make sure everyone is on the same page.
It is also important to remember that copyright has a life span of typically 50 years after the date the creator/designer died or the work was made available to the public.
If you own copyright, you can stop anyone else from copying or making an adaptation of your creation. Always remember to use the © sign when you display your work, eg. © 2015 Adams & Adams. This may just deter those copycats out there.
Protect that look
Registered designs can be a useful tool to protect your designs. Unlike patent protection which provides protection for the underlying concept of an invention, registered designs afford protection for the appearance/or ”look” of an article/item.
Many items with a novel look can be protected by registered designs e.g. jewellery, furniture, lighting, textiles, packaging, etc. However, the design must be intended to be multiplied in some kind of industrial process. Most articles which are not one-offs would qualify. Some articles may have both aesthetic and functional properties, such as packaging, textiles and furniture. Even purely industrial articles, where the features of the articles are determined by the function which the article is intended to perform, such as cogs, levers, cans and turbine blades can be protected.
What you must remember is that the design must be novel which means, as a general rule, that the design must not have been disclosed to the public (by you or anyone else) anywhere in the world, before you apply for a registered design. In South Africa, this requirement is relaxed somewhat in that it is still possible to file a design application, as long as you do so within six months of the date when the design was first released to the public, for example, at the Design Indaba Expo.
Protect your great idea
It is a popular misconception that to qualify for patent protection an invention must involve a groundbreaking innovation. Most patentable inventions nowadays are not about inventing a completely new technology, but rather a modification or development of an existing product or technology. Patent protection is typically directed at an underlying concept of an invention. Anything which can be used in trade or industry or agriculture can potentially be the subject of a patent, but there are specific exclusions mentioned in the Patents Act. Patentable inventions include articles, devices, mechanisms, systems, production processes, IT systems and applications and methods of doing things.
The two main requirements for protection for an invention are that it must be new and that it must also involve an inventive step. The “newness”/“novelty” requirement means that it must not be known to the general public anywhere in the world. An invention which is already on the market anywhere in the world or which has been described in public literature of any sort will not be regarded as being novel.
The Internet is a great resource to use to conduct patent novelty searches. Many patent databases can be accessed free of charge over the Internet so that you can do the preliminary investigation into the novelty of your idea. You should consider patent protection if your idea has commercial potential and has not already been disclosed to the public (by you or anyone else). There are a number of ways you can use a patent to your benefit. One way is to use it to deter competition in your market sector. Another way is to earn a passive income from your invention by licensing the use of your invention to somebody else. You can also profit from your idea by selling your patent rights.
Please come and chat to us about the nitty gritty of protecting your creations and designs at stand 35 at the Design Indaba Expo. If you have any questions in the meantime, please contact us at email@example.com.
Adams & Adams Design Team
Twitter handle: @Cre8veDesignLaw
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