Let’s talk about intellectual property law

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By Tafadzwa Mungwadzi

The importance of protecting one`s invention has been often underestimated. Since time

immemorial, negligence in not protecting one`s invention has resulted in litigation which often results in financial loses and reputational damage. Against this background, one would need to understand the role intellectual law plays in mitigating risk when one has coined an invention.

What is Intellectual Property?

Intellectual Property (IP) is a term that describes the application of the mind to develop something new or original. Intellectual Property can exist in various forms and can range from a new invention, brand, design or artistic creation. 

In some instances, Intellectual Property rights require a formal process of application, examination and registration with the relevant statutory bodies which administers the registration of trademarks, patents, and copyright. 

However, in some cases, intellectual property rights do not need to be registered in order to be of value. Examples of intellectual property that fall under this category includes literal works and music.

Registered intellectual property (IP) rights serve as an incentive to reward innovation by providing IP creators and owners with the time and opportunity to exploit their creation.

Each type of IP provides different competitive advantages for its owners and new commercialization opportunities for organisations.

Of trademarks

A trademark is a brand name, a slogan or a logo. It identifies the services or goods of one person and distinguishes it from the goods and services of another. A brand name is a word or combination of words (e.g. Kentucky Fried Chicken). A slogan is a short phrase or a sentence and a logo is a distinctive picture or symbol. They provide a distinctive identity in the marketplace and can apply to both products and services. Notable trademarks range from famous brand names such as Coca- Cola and Nike to slogans such as Nikes “Just do it.” Included in this category is the shape of the Coca- Cola bottle.

Yes, the coca cola bottle is a registered trademark. When a trademark (brand name, slogan or logo) has been registered, nobody else can use this trade mark or one that is confusingly similar. If this happens, legal action may result.

What is a Patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something or offers a new technical solution to a problem. 

The patent provides protection for the owner, which gives him or her the right to exclude others from making, using, exercising, disposing of the invention, offering to dispose, or importing the invention. International standard dictates that the protection is granted for a limited period of 20 years, even though some jurisdictions may opt for a shorter or longer period.

Registration of designs

In layman`s terms, a “Design” is about shape and features that appeal to the eye.

Therefore, design pertains to the shape, form, pattern, ornamentation and configuration of a product or article. There are two types of designs that can be registered, namely aesthetic and functional designs. The requirements for an aesthetic design is that it has to be new and original and that the beauty is in its shape, configuration or ornamentation. Additionally, it must be able to be produced by an industrial process. For example, the design of a ring (jewellery) is generally dictated by aesthetic features.

On one hand, a functional design has to be new and not commonplace and the shape or configuration is necessitated by the function. As with an aesthetic design, it must be able to be produced by an industrial process.

In terms of international best standards, protection is afforded to aesthetic designs for one period of fifteen years and to functional designs for one period of ten years.

However, this lifespan may vary depending with jurisdiction.

What is copyright?

A copyright is an exclusive right granted by law for a limited period to an author, designer or creator for his or her original work. Unlike other forms of intellectual property, copyright does not need to be registered, except for cinematograph films.

Works that are eligible for copyright include literary works like books and written composition novels, musical works such as songs, artistic works such as paintings and drawings, sound recordings, computer programs and broadcasting of films or music. For a work to be eligible for copyright protection, it must be original and be reduced to material form. Against this backdrop, it is important for one to effectively manage his or her Intellectual

Property to ensure you get the best protection and the most out of your idea or invention.

One must also note that the creator of Intellectual Property is not always the owner, such as the case where an IT programmer develops a computer program as part of his job. It is therefore important that ownership be addressed through appropriate contractual arrangements. Be on the lookout and ensure your inventions are protected. As the elders say, confiding a secret to an unworthy person is like carrying grain in a bag with a hole.

Gratias Tibi. Tafadzwa Mungwadzi is a lawyer who writes in his personal capacity. He can be contacted at info@tafmunglegalservices.africa, Tel +27 79 630 3884

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