Commercial Law

 

 

Yes, South African law recognizes various types of Trade Marks.  The most common is an "ordinary" Trade Mark, but you can also register "collective" Trade Marks (used by associations) and "certification" Trade Marks (certifying standards).  Additionally, "non-traditional" Trade Marks, such as sound marks, are also registrable if they are distinctive.
 

Yes, you can sell or assign your patent application rights even before the patent is officially granted. To ensure the new owner is legally recognized, it's essential to record this change of ownership with the South African Patents Office within six months of the transfer.


Copyright doesn't protect ideas in their abstract form.  To obtain copyright protection, you need to express your original idea in a tangible format. This could be writing it down in a book or script, recording music, creating artwork, filming a movie, or developing computer software. Copyright protection arises automatically for original works once they are put into a material form.
 

A patent offers significant benefits for inventors. It grants you the exclusive right in South Africa to prevent others from manufacturing, using, or selling your patented invention without your permission for up to 20 years. This exclusivity allows you to:

  • Control the market for your invention and potentially gain a competitive advantage.
  • License your patent to others for commercialization, generating revenue.
  • Take legal action against those who infringe your patent rights.

Ultimately, patents encourage innovation, investment in research and development, and the transfer of technology, benefiting both individual inventors and the South African economy

Any individual or business that is the owner of a Trade Mark can apply for registration. You don't need to be a South African citizen, but you must genuinely intend to use or already be using the Trade Mark within South Africa.  While you need a South African business address for the application, representation by a South African practicing attorney is permitted and often advisable. Note that representation by non-attorneys like auditors or accountants is not permitted for Trade Mark applications.

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Intellectual Property

Intellectual property refers to legally protected intangible assets that arise from creative or innovative activity. These assets include trade marks, copyrighted works, patents, and registered designs. Each category of IP grants its owner specific rights to control how the creation is used, reproduced, or commercialised. The purpose of these rights is to encourage innovation while giving creators and businesses a definable legal interest they can enforce or license.

What is Intellectual Property?

South Africa’s IP system is statutory in nature. Rights are created, recognised, or enforced through dedicated legislation, and certain forms of IP require formal registration with the Companies and Intellectual Property Commission (CIPC). These laws operate alongside commercial agreements, branding strategies, and licensing arrangements, making IP an essential part of business planning and competitive positioning.

Intellectual Property Protection

South Africa’s IP system protects a broad range of creative and technical outputs through dedicated legislation. Some rights arise automatically, while others require formal registration. Understanding how each category works is essential for managing ownership, commercial use, and enforcement.

Copyright protects original literary, artistic, musical, and creative works the moment they are produced in a tangible form. It gives the owner control over reproduction, distribution, adaptation, and public performance. Most works are protected for 50 years after the author’s death or, for films, sound recordings, and computer programs, 50 years from publication or creation. Copyright is enforced through claims for damages or interdicts where unauthorised use occurs.

Patents

Patents apply to inventions that are new, inventive, and capable of industrial application. They provide exclusive rights to make, use, or sell the invention for up to 20 years from filing, subject to annual renewals from the third year. Subject matter like artistic works, mathematical methods, and business methods cannot be patented. Patent enforcement typically involves interdicts, damages, or the removal of infringing products.

Trade Marks

Trade marks protect brand identifiers such as names, logos, slogans, and product shapes. While unregistered marks can receive limited protection, registration offers clearer and more reliable rights. A registrable mark must be distinctive and not conflict with existing marks. Once registered, protection lasts for 10 years and can be renewed indefinitely. Enforcement remedies include interdicts, damages, and the removal of infringing goods.

Registered Designs

Registered designs protect the external appearance of products. South African law recognises aesthetic designs based on appearance and functional designs based on utility. Aesthetic designs receive 15 years of protection, and functional designs receive 10 years, with annual renewals required from the third year. Infringement remedies include interdicts, damages, or delivery up of infringing items.

How Intellectual Property Operates in Business and Where Protection Breaks Down

Intellectual property shapes how businesses build brands, develop products, and establish a competitive position. Trade marks strengthen customer recognition, copyright protects creative and digital material, and patents or registered designs secure technical and aesthetic innovation. These rights influence licensing arrangements, franchise models, and the valuation of a business during investment or acquisition. When used correctly, IP becomes a measurable commercial asset rather than an abstract legal concept.

IP as a Commercial Asset

In the ordinary course of business, IP supports everything from marketing and product launches to technology development and commercial negotiations. A distinctive trade mark anchors brand identity, while protected designs and inventions give a business room to operate without immediate imitation. Licensing arrangements, manufacturing agreements, and joint ventures frequently depend on well-defined IP rights, which directly affect negotiation strength and long-term commercial returns.

Where IP Protection Weakens

Protection breaks down when essential requirements are overlooked. Trade marks may lose their force if renewals are missed or if the mark remains unused for extended periods. Patents can be compromised when an invention is disclosed publicly before filing or when annual renewals lapse. Copyright ownership often becomes unclear where contractors or employees create material without explicit clauses assigning rights to the business. Collaborative work, outsourced development, and informal arrangements commonly lead to competing claims over authorship and ownership.

These weaknesses usually come to light during disputes or commercial transactions, where uncertainty about ownership or validity can delay negotiations or undermine the value of the underlying asset.

Maintaining Effective Protection

Preserving the strength of IP rights requires consistent management. Registrations and renewals must be kept current, and ownership should be documented clearly through assignments and appropriately drafted employment or service agreements. Contracts involving branding, manufacturing, distribution, or software development should identify the relevant IP and define how it may be used. Businesses also benefit from monitoring their markets, as early detection of infringement allows for more efficient enforcement and limits commercial damage.

VDM Attorneys – Intellectual Property Attorneys

VDM Attorneys advises clients on the protection, management, and enforcement of their intellectual property in South Africa. Our team assists with registrations, renewals, assignments, and licensing arrangements across trade marks, designs, patents, and copyrighted works. We also guide businesses through disputes, infringement matters, and the integration of IP into commercial transactions, ensuring that intellectual assets are understood, documented, and applied effectively within a regulated environment.