Finweek English Edition - - FEATURE -

With re­gard to SMMEs, which are un­doubt­edly more vul­ner­a­ble and have fewer re­sources to fight un­ex­pected le­gal chal­lenges, the pro­tec­tion of IP is some­thing that needs to be care­fully con­sid­ered from the out­set.

As l ega l e x per t s e x pl a i ned t o Fin­week, the im­por­tance of reg­is­ter­ing IP is al­ways un­der­es­ti­mated and of­ten ne­glected.

“It is one of the f irst as­pects that should be con­sid­ered when start­ing a busi­ness,” says Ber­nadette Vers­feld, part­ner at law f irm Web­ber Wentzel. “In­tel­lec­tual property may have been de­vel­oped in cer­tain cases and patent, de­sign and/or trade­mark pro­tec­tion may be ap­pro­pri­ate.”

“Many businesses do not un­der­stand the im­por­tance of pro­tect­ing their IP un­til they are faced with a sit­u­a­tion where an un­scrupu­lous agent or dis­trib­u­tor has de­cided to ‘own’ the prin­ci­pal’s brand for him­self,” agrees Me­gan Mo­erdijk, trade­mark part­ner at law firm Adams & Adams. “The sooner the IP is pro­tected the bet­ter be­cause try­ing to re­cover IP af­ter this has hap­pened is not only frus­trat­ing and time con­sum­ing, but al­most al­ways very ex­pen­sive!”

Vers­feld cites the ex­am­ple of a com­pany’s brand name, which she says should be pro­tected by way of a trade­mark reg­is­tra­tion, given that time, money and ef­fort is put into “build­ing a rep­u­ta­tion and good­will around that brand name”.

She adds that in South Africa, it is im­por­tant to reg­is­ter that brand as a trade­mark for a num­ber of rea­sons. For one, the Com­pa­nies Of­fice Reg­is­ter and the Trade Marks Of­fice Reg­is­ter are two sep­a­rate reg­is­ters – hav­ing a com­pany name reg­is­tered does not pro­tect your brand name, and a per­son with a prior trade­mark reg­is­tra­tion will have pref­er­en­tial rights.

“Reg­is­ter­ing a trade­mark also pro­vides an easy rem­edy to en­force your rights and res­train third par­ties from us­ing and in­fring­ing the trade­mark,” says Vers­feld. “Hav­ing reg­is­tered rights is an es­sen­tial el­e­ment in al­low­ing you to com­mer­cialise the in­tel­lec­tual property more eas­ily and suc­cess­fully.” AFRICAN EX­PAN­SION When en­ter­ing African mar­kets, as many growth-seek­ing South African businesses of all sizes and across all sec­tors are now do­ing, it be­comes es­sen­tial to un­der­stand the rules and reg­u­la­tions around IP – and to have your own le­gal house in or­der.

“Many African coun­tries are ur­ban­is­ing at a rapid rate, in­creas­ing the need for in­fra­struc­ture, goods and ser­vices,” ex­plains Mo­erdijk. “This is where the IP own­ers come into play, as they can pro­vide all of this – but if their IP is

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