The protection of intellectual property is an interesting legal field. When is inspiration taken from an existing idea copycatting, when is it cultural appropriation or even misappropriation if you’re using a specific textile design, musical style or language that’s not your own? Can only an Italian open a pizza/pasta restaurant? Can only a Scotsman wear tartan?
Was it okay for Louis Vuitton to use the Basotho blanket as inspiration for a garment that carried a R33 000 price tag? Is it okay for Dr, as she is now, Esther Mahlangu to replicate Ndebele designs and paint New York streets with them? Was it okay for Laduma to take inspiration from Xhosa culture for the patterns on his cardigans and socks that got a certain Spanish retailer into trouble?
Product development and evolution is a fact of life but presents certain legal challenges. Did Taxify copy Uber, or have they differentiated their product significantly enough other than on price? So called ‘disruptors’ always work on extending an existing concept and taking it further. So can an app that is similar to another be considered copycatting?
We all know that plagiarism in the academic field is a serious no no. School learners are required in the higher grades to run essays through websites that can detect if chunks of the text have been copied from already published works. And when is a new tune really just an old tune? Ask Pharrell Williams and Robin Thicke who got their lines blurred where that is concerned.
So can you effectively protect your own IP, or not?
It is important from the outset for companies or original idea holders to register their trade mark, copyright their idea and establish their rights to their intellectual property, however insignificant in the market place it might be now. Even Apple and Nike had to start somewhere!
IP is defined in four different categories – Patents, Trademarks,Trade Secrets (sssh!) or Copyrights and it’s important to identify into which category your idea or invention falls to make the registration process as quick, painless and inexpensive as possible.
Patents protect inventions and prevent others from making, using or selling your idea. But as an individual who has come up with the next best thing for your company, you also need to be aware that the idea may not belong to you, but to your employer.
A Trade Mark protects a word, phrase, symbol or similar. Registering a cultural emblem as a trade mark is an option for ethnic groups such as the Basotho to ensure cultural preservation of a design or artefact, but this may not always translate into real protection in the commercial market place. Still, it’s worth it if you have to stake your claim at some point in the future.
Trade secrets fall into the category of the recipe for CocaCola as one example. But also, if you’re a software developer, then this applies to algorithms you may have created. I hope your formula is locked in a safe somewhere.
Copyright refers to the authorship of a book, song, poem, play etc. This is where plagiarism is most rife and authors and composers would do well to assert their rights as soon as they have completed their magnum opus.
Some of the terminology and processes, including how long IP protection lasts (there are different expiry periods once you have registered a patent or trade mark etc) and so it is always best to consult a legal expert in this field.
As a member-based organisation, Proudly South African is always happy to assist its members in any matter including advice on their unique IP.