across the bar

Why do businesses need to protect their IP?

by Steve - Posted 26 March 2006

In today's environment, we are dealing in intangibles. An innovative and dynamic business no longer owes its wealth to its physical assets. The rules of the game have changed and the new sources of wealth and business success are largely invisible!

These new sources of wealth in your business include:

- Intellectual capital  -  knowledge truly is power - yours, your employees and what you learn from your customers every day

- Human capital - your people are all temps who decide where and who to contract their heads and hearts to each day

- Social capital - it's definitely who you know   

All of these things make up your company's Intellectual Property or IP. The real value in all this IP is the way that it can be integrated into your overall business strategy. The wise modern business uses IP to market itself, make its products and services better, to retain hot talent and to make it more competitive long into the future. 

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Some practical tips for protecting your IP

by Steve - Posted 26 July 2005

1.   Keep clear and accurate records of the date the IP was created; who created it; when was it first used / marketed / published; and if registered, date of registration.

2.    Gather all evidence you can about when your IP was created and proof that it is being used (press cuttings, adverts, letters to investors etc.).

3.  Use your IP as often as possible and ensure that it remains consistent. The more exposure it gets, the easier it is to prove reputation.  

4.   Monitor the market and be on the lookout for potential infringers. There are independent watchdog bodies that provide monitoring services around the globe if you don't have the time or resources to do this yourself.

5.   If you detect infringements, take action immediately. By not doing anything, you could be consenting to the loss or dilution of your IP rights.  

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When is a secret not a secret?

by Steve - Posted 21 July 2005

The Valunet judgment highlights two important points:

-   that there is a misconception among many companies that by ring-fencing all the information about their business and calling it     confidential - it is protected; and

-   A confidentiality agreement will only protect information which is confidential.

So what does the law regard as confidential information?

a)   information that is limited to a limited number of people and is not made a matter of public knowledge; and
b)   that can be used in trade and industry; and
c)   which has economic value to the person trying to protect it - objectively determined.

The folks from Valunet found out the hard way that, once information about a new product or service is out there, it can be freely taken over by a rival competitor - even where that rival is effectively riding on your coat tails.

Until you have hit the ground running with your new product or service - keep your hand close to your chest.

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Case report on Valunet judgment

by Steve - Posted 20 July 2005

Check out a summary of this recent case involving the protection of confidential information.

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New judgment on confidential information in ICT sector

by default - Posted 16 June 2005

Van Oosten J in Valunet Solutions Inc. v eTel Communication Solutions 2005(3) SA 494 (WLD):

"Innovator of novel concept or idea can only preserve it by jealously guarding it as a secret or secure its protection by patent or otherwise. Once disclosed its impetus and hopes of remaining unique are short lived. Experience in this particular field teaches that a novelty of today is merely history tomorrow"

Interesting judgment that has been reported in the Witwatersrand Local Division on the protection of confidential information and unlawful competition in the ICT industry. Watch the space for our comments on the case.   

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Nicciferguson on domain names

by default - Posted 06 May 2005

Follow the link to the Mail & Guardian Online to see what we have to say about the current state of domain name disputes in SA (unfortunately only available to M&G subscribers).

http://www.mg.co.za/Content/l2_c.asp?sa=106

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New case - trademarks vs domain names

by default - Posted 24 April 2005

Last week the CPD handed down its judgment in the matter of New Media Publishing (Pty) Limited v Eating Out Web Services CC. The facts briefly stated were as follows:

The facts

The Applicant is the publisher of a magazine titled "Eat Out" which is a guide to restaurants in SA. The guide contains comprehensive information on the featured restaurants. The Applicant also has a website at www.eat-out.co.za which has been registered since 24 November 2000. The website is based on the same concept as the offline publication but is not as comprehensive.

The Applicant is also the holder of the registered trade mark "Eat Out Guide" which was duly registered with effect from 3 July 1998.

The Respondent has websites at www.eating-out.co.za and www.eatingout.co.za which provides visitors with free information on restaurants in SA. The websites are similar to the offline material published by the Applicant. These websites have been operating since June 2000.

Relief sought

The Applicant sought an interdict from the court for the following relief:

a)                  restraining the Respondent from infringing its registered trademark; andnull

b)                  restraining the Respondent from passing off its business, products or services as those of the Applicant and from using the name Eating Out or any mark confusingly or deceptively similar in any manner so as to connect it with the applicant's business, products and services.

Trade mark infringement

The court found that the combined effect of the close resemblance of the words "Eating Out and the Applicant's registered trade mark and the similarity between the Applicant's publication and the Respondent's website is such that in the use of its mark by the Respondent there exists the likelihood of deception or confusion. Therefore, the Applicant established an infringement of its registered trade mark by the Respondent.                          

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Isn't it ironic - don't you think

by default - Posted 07 April 2005

The popular words sung by Alanis Morrisette aptly describe the recent claim by a Romanian programmer against the famous file-sharing service, KAZAA, for compensation amounting to $25 million for copyright infringement.

The claim will probably be a welcome relief for KAZAA's lawyers who spend their entire working lives defending lawsuits brought by the various Recording and Film Industries around the world.

Mr Fabian Toader claims to have written the source code for KAZAA's peer-to-peer network software while working as a freelancer for them in 2000. The company maintains that Toader's contribution was made pursuant to a "work for hire" agreement which expressly stated that KAZAA owned all rights therein. Toader in turn alleges that he never signed any agreement with KAZAA and that, under US copyright law, he is the owner of the program.

How would this problem be resolved under SA law? Steven examines the question of who owns the copyright in software developed on behalf of another; and whether development companies automatically own work produced by their employees or freelancers?

The article also offers some useful guidelines to both parties when seeking to protect their valuable IP. Read more

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