Monitor and defend your rights

Once you own IP, you are responsible for monitoring the market to ensure you are not being infringed. If you are the victim of infringement it is then up to you to take the appropriate steps - an IP lawyer or attorney can assist you to determine if you are being infringed and the best way to deal with the situation. We are not in charge of monitoring IP infringement - this is your responsibility.

 You need to monitor and safeguard your IP. This means letting others know you have a legal right to your IP and, if necessary, defending your rights through legal action. This is to ensure that only you can turn your ideas into a commercial reality.

This is why you'll see many products containing the ® symbol - this is the owner letting everyone know that they have a registered trade mark. Copyright owners do a similar thing by using the © symbol with their work, while many new products will have patent pending or the patent number displayed.

 
 Infringement

Don't wait for someone to infringe your IP. Putting a strategy in place to deal with infringement before it happens should be part of your overall protection and commercialisation strategy.

 If you find your IP is being copied or used by someone else without your permission, there are a number of actions you can take. Possibilities available to you can range from a letter of warning from you or your attorney - to court action. It is always best to seek professional advice.

 Whatever action you do take, pursue it vigorously and make sure any person infringing on your rights knows you are serious about protecting your IP. Any delay could jeopardise your legal rights to take action.

Proof of ownership

Owning IP is like owning physical property. It indicates to others that you have a claim on it, it deters others from infringing upon it and enables you to take legal action against those who do.

 To help prove your ownership of IP, keep a record of:

  • what kind of right you have, and in what form the right was created
  • what, if any, material from a third party was used in the creation process, and whether permission for such use was obtained
  • when it was created
  • who created it
  • evidence of ownership - such as an application for a patent, trade mark or design
  • contracts with all parties involved in the creation of the IP that clearly identify who owns the IP
  • log books showing how the creation process was undertaken (particularly important for IP created by employees)
  • files of early drafts and prototypes that embody IP
  • copies of agreements with those on whose behalf you are distributing goods or services. These should include agreements giving distributors the right to use trade marks and marketing material. This evidence should be stored in an IP Register with a back-up copy in a separate location

 Infringement of trade marks on the internet

When you trade over the internet, you are entering a global marketplace. There is no such thing as a 'world' trade mark.  Registration of a trade mark in South Africa does not give you any rights in relation to that trade mark overseas.  If you offer goods or services for sale on the internet, you could be sued for infringement in a country where someone else owns the trade mark.

 South Africa is a member of the World Intellectual Property Organization (WIPO) which establishes guidelines to protect trade mark owners who trade over the internet.

Be aware of the potential risks you face when trading over the internet. You should seek legal advice on the best ways you can avoid or minimise those risks. Most importantly, you should seek legal advice if you receive notice from an overseas trade mark owner alleging that you are infringing their trade mark via the internet.

Trade mark owners contemplating trading over the internet should consider applying for international trade marks.