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