Pro­tect your bright ideas

If it’s worth the trou­ble, pro­tect it

Finweek English Edition - - Focus on intellectual property -

THE WORLD IS quite with­out con­science when in­tel­lec­tual prop­erty (IP) is con­cerned and it’s con­se­quently be­com­ing in­creas­ingly im­por­tant for peo­ple to ad­e­quately pro­tect their cre­ations. Es­pe­cially in de­vel­oped coun­tries, the ex­tent of that pro­tec­tion has reached phe­nom­e­nal pro­por­tions. For ex­am­ple, last year in the United States there were 440 000 new pa­tent ap­pli­ca­tions (8,3% more than in 2005) and 188 000 trade­mark reg­is­tra­tions – a 31% in­crease over the pre­vi­ous year.

The reg­is­tra­tion of trade­marks, patents, copy­right and de­signs is also be­com­ing in­creas­ingly im­por­tant in SA and there are al­ready scores of com­pa­nies pro­vid­ing le­gal as­sis­tance and other ser­vices re­lat­ing to in­tel­lec­tual prop­erty.

“Some of th­ese firms are so big that they have spe­cial di­vi­sions spe­cial­is­ing in trade­marks, patents, de­signs and copy­right,” says Spoor & Fisher chair­man Chris Bull. There could even be fur­ther spe­cial­i­sa­tion in terms of dis­ci­plines such as en­gi­neer­ing, pro­gram­ming, biotech­nol­ogy and nan­otech­nol­ogy.

Ac­cord­ing to le­gal firm Adams & Adams chair­man Alan Smith, IP rights have great value. “For the in­no­va­tor or cre­ator they pro­vide a mech­a­nism for re­cov­er­ing re­search and de­vel­op­ment costs and re­ward­ing in­ven­tive­ness. For the con­sumer – who has to dis­tin­guish one prod­uct or ser­vice from an­other – a trade­mark guar­an­tees a cer­tain stan­dard and qual­ity.”

Fran­chis­ing Plus mar­ket­ing ex­pert Eric Parker says, in his com­pre­hen­sive busi­ness guide Road Map to Busi­ness Suc­cess, that ef­fec­tive pro­tec­tion of IP is be­com­ing more im­por­tant as the busi­ness world be­comes in­creas­ingly knowl­edge based.

Says Parker: “Well-known trade­marks can build up great mone­tary value in the course of time. The value of a good trade­mark can in fact far ex­ceed a com­pany’s so-called brick and mor­tar in­fra­struc­ture on its bal­ance sheet.”

Parker warns that though there’s no le­gal obli­ga­tion to reg­is­ter with the Com­pa­nies & In­tel­lec­tual Prop­erty Reg­is­tra­tion Of­fice (Cipro) in Pre­to­ria, it’s un­doubt­edly worth do­ing so.

Smith says that IP con­sists of many dif­fer­ent rights that arise due to in­di­vid­u­als’ creative ef­forts and that reg­is­tra­tion is es­sen­tial to en­sure that the cre­ation re­mains the de­signer’s prop­erty. Re­gard­less of whether it’s a trade­mark, copy­right in art, mu­sic or a liter- ary work – or pa­tent rights for an in­ven­tion – it be­comes part of ev­ery­one’s daily life and pro­tec­tion is im­por­tant.

“For ex­am­ple, you wake up in the morn­ing and put on your Puma run­ning shoes and Nike sports clothes to go for a morn­ing run. Then you eat toasted Wool­worths bread or Kel­logg’s corn flakes – all trade­marks. That’s fol­lowed by a quick shower us­ing Pal­mo­live soap, you brush your teeth with Aquafresh tooth­paste and drive to work in your BMW.” On the way you may lis­ten to a Westlife CD with a photo on the cover, all which are pro­tected by copy­right.

“All th­ese trade­marks, de­signs, copy­rights or in­ven­tions are pro­tected in one way or an­other and make us all part of a world econ­omy. Progress in this world econ­omy de­pends on those rights, be­cause grant­ing those rights jus­ti­fies in­vest­ments in them. With­out IP rights this in­no­va­tion would be largely dis­cour­aged.”

Smith says that en­tire in­dus­tries are built on IP rights, such as the cell­phone and com­puter in­dus­tries. “More than 70% of the as­sets on Mi­crosoft’s bal­ance sheet con­sist of its in­tel­lec­tual cap­i­tal, of which in­tel­lec­tual prop­erty makes up a sub­stan­tial por­tion. “In­tel­lec­tual prop­erty has so much value that it’s im­por­tant to take trou­ble to pro­tect it. Forg­ing and piracy have in­creased enor­mously, as the grow­ing num­ber of judg­ments on them shows.”

Smith says that SA has ex­cel­lent laws to pro­tect IP. How­ever, their ap­pli­ca­tion could im­prove. “It’s also shock­ing that 20% of South Africans have no qualms about buy­ing pi­rated copies of CDs and DVDs, as was re­cently shown by fig­ures from TNS Re­search Sur­veys. We’re con­cerned about the level of the crime in the coun­try but are quite happy about creators and artists be­ing robbed of their in­come.”

Smith says that the prob­lem of IP be­ing dis­re­garded has much to do with that in­dif­fer­ence and, un­til such time that peo­ple real-

SA has ex­cel­lent laws to pro­tect IP. How­ever, their

ap­pli­ca­tion could im­prove.

ise they’re help­ing crime syn­di­cates to fill their pock­ets and rob­bing IP own­ers of their in­come, it will sim­ply get worse and worse.

Adams & Adams le­gal ex­pert Ger­rie Swart, who spe­cialises in sports cases, praises the re­cent judg­ment in the Staal­draad Camp case as a vic­tory for the per­sonal rights of the Spring­bok rugby play­ers in­volved and for copy­right in SA. The judg­ment pro­hibits Pro­Tect In­ter­na­tional from dis­tribut­ing a DVD con­cern­ing the con­tro­ver­sial train­ing camp or any adap­ta­tions of it, since that mar­ket­ing would be a copy­right vi­o­la­tion.

Says Swart: “This is an im­por­tant step for­ward in the ap­pli­ca­tion of the Act in re­la­tion to copy­right and the pro­tec­tion of the im­age and dig­nity of in­di­vid­u­als in SA.”

Al­low de­sign­ers and artists to have their in­come. Alan Smith

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