FAQs

The title of ivention for a patent is should appear as the heading on the first page of the specification. Although a title may have up to 500 characters, the title must be as short and specific as possible...

The technical content of patent documents is classified according to the International Patent Classification (IPC).

If you are manufacturing goods or offering a service, it helps you to have a trade mark. When people see or hear about a trade mark, they remember the goods or services associated with it. Your trade mark distinguishes you from other people in the same line of work, and gives you an identity in the market place. Goods are things that can be manufactured, such as a radio, clothing, medicine, cosmetics, jewelry and cars, goods can also be perishables, such as plants, meat, milk, fruits, and vegetables. A service is work done by a person or a group of people for other people. Some examples are a restaurant, a construction company and a food delivery service.

You may file on your own or the office may assist you if you wish to file a provisional patent application. To file a complete patent application you are required by the law to be assisted by a patent attorney.

Registered designs can be made enforceable by certification, and carry exclusive rights. Published designs do not give any rights.

If you have an original idea you cannot have copyright on it. You must put your original idea into material form such as a book, a CD, a painting, a picture, a screenplay or a film. Other works subject to copyright are published editions, computer programs, broadcasts etc.

This is an electronic journal that is published by CIPC on a monthly basis, and it contains information on advertised patents, trade marks, designs and copyright in cinematographic films that exist in South Africa and are available for public inspection. This e-journal is accessible through the E-journals section of this portal.

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Functional Designs apply to the pattern, shape, configuration or ornamentation of an article, but a functional design must play a role in how the article performs.

Aesthetic Designs perform a visual function to the shape, pattern, configuration or ornamentation of an article. Aesthetic design features are judged solely by the eye and do not involve the function of an article.

There are three ways in which inventions can be protected. However, it should be noted that this is a fairly specialised field. When lodging a complete specification (see par. b below) for the registration of a patent, the assistance of a patent attorney will definitely be required.
a.Complete the prescribed forms for the provisional patent application. This will give you protection for 12 months.
b.Complete the forms to complete specification, attaching drawings where applicable. This will give you protection for 20 years, subject to payment of renewal fees.
c.Apply for an international patent protection designating South Africa and any other member of the Patent Cooperation Treaty (PCT) in terms of the PCT system.

A search on the patent databases available on the internet could be done either by you or by a patent attorney. To be new, the invention must be not known or used anywhere in the world. A patent is only protected where it is filed, e.g. in the country in which it was registered. However, international agreements allow protection in more than one country, e.g. the European Convention. If you wish to apply for a patent in a foreign country, the Paris convention, of which SA is a member, allows an applicant to claim priority on the ground of the first patent application for the same invention, if the subsequent application in the foreign country was filed within12 months after the application date of the first one. If you file abroad - the Patent attorney or an International Search Office should do a search.

Yes, there are ordinary, collective and certification trade marks. Also non-traditional trade marks such as sound marks.           

A group of traders may register a so-called collective trade mark for use by its members only. The purpose of such a trade mark is to show that a member of the association provides the goods or services associated with that specific association/organisation. The collective mark may often be used together with the individual company's trade mark. When a collective trade mark has been registered, the owner may allow use of the mark by any person who complies with the regulations relating to its registration. Geographical names or other indications of geographical origin may be registered as collective trade marks e.g. Stellenbosch Farmers Winery.

A certification mark exists to indicate that a product is of a certain quality or has certain characteristics rather than to distinguish it from the products of other traders e.g. the cotton mark, the wool mark, the leather mark.            

If you have become associated with a particular identity through trade, you have what is known as common law trade mark rights. To protect this trade mark, you can sue the infringer for passing off. Passing off is when the infringer has led the public to believe that his goods/services are the same as or associated with the goods/services of the trade mark owner.

Any trade mark owner. You do not need to be a South African citizen to register a trade mark, but you must be using the trade mark in the Republic of South Africa. To register the trade mark you must have a business address in South Africa. If you are represented by someone with an address in the Republic of South Africa, the representative must be an admitted attorney in South Africa. Trade Mark applicants MAY NOT be represented by auditors, accountants, etc.

Yes, you can, but you must make sure that your trade marks do not infringe somebody else's rights. Remember that your registration is valid only on the territory of South Africa. You are strongly advised to use an attorney to conduct a trade mark search for you in the country you are exporting to, or depending on the circumstances, apply for a trade mark registration in that country.

It is not possible to use a well-known trade mark as your own, because the Trade Marks Act (Act 194 of 1993) protects the original proprietor.

A search has to be conducted to make sure there is no similar or identical trade mark on the register preventing the registration of your trade mark. Click here for more information on special searches.

It is hoped that this functionality would be available in the near future.

If you conduct a search yourself at our office, it can be done in a few minutes. If you require a special search to be conducted, the office will provide a report within 15 working days after receipt of the request for the special search.

Create a brand name, slogan or logo (device) for your goods or services. Try to create something distinctive that people will remember. Do not simply describe your goods or services, since this will not serve to distinguish your business from other businesses with the same goods and services

No. The Act defines what can be regarded as a trade mark and more specifically exactly what constitutes a trade mark. Click here for more information on what is a trade mark

It does not. If you want to apply for overseas protection you must approach a trade mark attorney in the relevant country to register the trade mark for you.

This is not necessary but you may find it useful to seek the assistance of a trade mark attorney if your trade mark is refused or if there are any objections. If you do not reside in South Africa you will need to make use of lawyers to lodge the application for you

An admission is normally required where a word that is required for use in the trade by other traders has been miss-spelt in a trade mark, eg “xpert” as opposed to “expert”. The applicant will be required to admit that he does not obtain any exclusive rights in the word “expert”. A disclaimer is required when a word that is required for normal use in the trade by other traders form part of a trade mark application, e.g. the word “perfume” in the class for perfumes. The applicant will be required to disclaim exclusive rights in the word “perfume”.

The best course of action is to obtain written consent from the registered owner by contacting him/her directly.

The application fee for a trade mark is R590.00 for one class of goods or services. For each additional class it is R590.00. This amount will not be refunded if the application is refused

A trade mark should be renewed every 10 years

A trade mark is renewable every 10 years. This office will notify the proprietors six months before renewal is due. However it is also the responsibility of the trade mark holder to ensure that he tends to the renewal in the proper time frame as the office cannot be held responsible when a trade mark holder fails to apply for renal timeously.

Yes it can. If your registered trade mark has not been used in South Africa for a continuous period of five years, another person may apply to have it removed from the Register.

It is always advisable that the trade mark be searched before the application is made. This can be done by requesting a special search on payment of a fee of R190.00 payable. However a special search report ONLY indicates if there are prior conflicting marks on the register – it does not indicate whether a mark will be found to be registrable or not during the period of examination. This cannot be advised beforehand – only once the application is examined will an official action be sent to the applicant.

The Trade Marks Department is not responsible for policing and/or enforcing an individual's trade mark rights. You should approach your trade mark attorney for help

Yes. You may allow others to use your trade mark on some of the goods or services for which it is registered on such terms and conditions as you deem appropriate. A fee is payable. Click here to view more information on registered users.

Yes you can. A trade mark is property just as any other and can be sold or given away. The Registrar must be informed of the change of ownership and the conditions of the change of ownership. The new owner must be noted in the Register for which a fee is payable. Click here to view more information on assignments.

A trade mark must be registered for goods or services falling in a particular class in accordance with the prescribed classification, e.g. class 25 for clothing, footwear and headgear, class 5 for pharmaceuticals and class 42 for the Internet services. The classification is an international one used in all countries and can be found on the website of the World Intellectual Property Organisation at www.wipo.int.

Yes, provided there is no similar or identical registered trade mark on the register

A trade mark cannot be filed in all 45 classes just to keep out competitors. But if you intend the mark in all 45 classes, you can apply for registration in all the classes

You will need to ask advice hereon from your lawyer as it will depend whether their right to use the company name is stronger than your right to use the trade mark. It is advisable to do the trade mark and company or close corporation searches simultaneously.

This office does not, but you can contact your Internet service provider.

The best course of action is to approach the executor of the estate and discuss the matter with him/her.

A trade mark is property that can be sold by the liquidator.

Anybody who sees a trade mark advertised in the Patent Journal and believes that he/she may have objections may oppose its registration within three months of it being advertised, by making written representations to the Registrar. The same applies if you wish to object to the registration of someone else's trade mark. If your trade mark is opposed it is advisable to seek professional assistance from a lawyer. Click here to view more information on oppositions.

Yes it can be used, but the owner cannot obtain sole rights to the common part of it , e.g. .co.za.

SEDA, a division of the dti may be able to assist you herewith. Their details can be obtained from www.thedti.gov.za.

Yes you can, provided it falls within the definition and requirements of a trade mark.

It is either a physical or a postal address, where you would like to receive your correspondence in respect of the trade mark application. It must be an address in the Republic of South Africa.

You can fax application forms and communicate to this office electronically provided that the original is received within 5 working days of the receipt of the faxed copy.

This office does not provide barcodes. Contact Barcode Systems at 011 444 3344. They will be able to assist you.

Please contact the Technology Promotions of the Department of Trade and Industry hereon.

Such emblems fall under the protection of the Merchandise Marks Act, Act 17 of 1941. The following are regarded as state emblems: the seal and coat of arms of the Republic, national monuments, the representations of the present and all former State Presidents of the Republic. Use can be made of these state emblems only with the permission of the Minister of Trade and Industry, together with the consent of the owner of the state emblem and that of the National Monuments Council. In as far as the use of the flag is concerned, use may not be made of it in a trade mark. In addition, use can be made of the national flag only with the permission of the Minister of Trade and Industry.

Generally, you can patent anything which meets the requirements of an invention provided it is not contrary to the law, good morals and the natural laws.

In terms of the SA Patent Act, there is a requirement for absolute novelty i.e. the invention must be not known or used anywhere in the world. However, there are some countries where the novelty requirement is restricted to the so-called relative novelty, e.g. not known for the last 50 years, but a prior use is not destroying the novelty.

20 years, subject to the payment of annual fees.

There is a provision for registration of a patent of addition, if it is an improvement of your own invention and the protection will be granted for the unexpired period of the main patent. If it is an improvement of somebody else's invention, you can obtain a dependent patent, as far as that improvement is patentable.

It is a description of an invention and contains also claims and/or drawings.

Yes. The law requires that a patent attorney signs a complete specification.

The first renewal fee is R130. The amount increases, as the patent gets older.

Apply on the prescribed form P4 (maximum of three months). This is not acknowledged abroad, but only applies to the South African patent.

Yes, on condition that the invention is still new and not presented or made public to anyone, or the media.

One may inform the person in writing that he is infringing on your invention. One can not sue a person while it is a provisional application. Only nine months after the granting of a complete patent can one institute action. The infringement action may include a claim for an interdict, delivery up of things involving infringement and damages.

A world patent does not exist. You may file separate applications in all the countries or file a PCT application designating countries in which you seek protection.

Yes, the change of ownership should be recorded in the Patents Office within six months.

Your patent will be attached like any other property.

Yes, you may apply for more than one name as an applicant. Even a company's name may be used but the inventor should submit an assignment of invention to indicate that he has granted permission to those applicants.

You have to register as a customer via the CIPC website or if you need assistance, you may come to register at the CIPC offices.

Yes, but on condition that a patent attorney signs the specification indicating his capacity.

File a request by the way of notice of motion, accompanied by an affidavit explaining the reasons why the patent lapsed. You should state that it was never your intention to allow the invention to lapse. You should also have applied for the restoration without undue delay.

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If you wish to file a complete patent application and with regard to eventual amendments if you wish to file abroad. You may ask an attorney to conduct a patent search, such as a novelty search, state-of-the-art search or infringement search etc.

Yes, you may, but you will deprive yourself of time to do market research to determine whether your patent is viable and then proceed to registration.

The Patent Cooperation Treaty is a treaty which allows an individual/resident of the member states of that treaty to lodge an application in one office (Receiving Office) and 31 months thereafter the applicant may enter the PCT National Phase in all countries, members of PCT in which he has intention to seek protection. The PCT application is processed through the International Phase and the National or Regional Phase.

Transmittal fee: R500.00
Preparation of each Priority: R200.00
Basic fee: R 2 620.00
If the application contains more than 30 sheets: R60.00 for each sheet in excess of 30 sheets
Search fee - Click here

Austrian Patent Office: R1 022.00
Austrian Patent Office: R3 150.00
European Patent Office: R6 040.00
NB: Fees may change on a monthly basis by notification given in the PCT Newsletters - PCT Newsletters are available on the World Intellectual Property Organisation (WIPO) website - www.wipo.int

The applicant does not need a Patent Attorney to file a PCT application. However, when the same application enters the national phase, the complete specification must be signed by the patent attorney.

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The effective date for the Act is 1st of May 2011

The new Companies Act (Act 71 of 2008) repeals the current Act and the following are notable changes:

The policy enunciated in the new Act is one of: •Simplification of the legislation; simple and accessible language for all business and stakeholders

  • Reduction of the regulatory burden; simplicity and speed of formation of business entities
  • Decriminalisation: Recognising that this is a business legislative instrument constant reference to “if a person fails to file ...shall be guilty of an offence and upon conviction sentenced to a fine or imprisonment or both” etc. has been avoided in the new Act as far as possible except for issues of perjury, fraud etc.
  • It has been harmonised with other legislation such as Access to Information Act ,Protected Disclosures Act, Electronic Communications and Transactions Act, etc.
  • Furthermore, there are major changes to the new Act and are as follows:

  • Structural Arrangements and new regulatory institutions
  • Overhaul of Fundamental Transactions and Takeovers
  • Partial Codification of Corporate Governance aspects
  • New Concept of Business Rescue for failing companies

The Act proposes the establishment of one new institution, and the reformation/transformation of three existing company law entities, which together will provide for a more predictable regulatory and enforcement system.

The four institutions are:

  • The Companies and Intellectual Property Commission (CIPC), a new entity being formed via a merger between The Office of Company and Intellectual Property Enforcement (OCIPE) and the Companies and Intellectual Property Registration Office (CIPRO)
  • The Takeover Regulation Panel, reforming the current Securities Regulation Panel
  • The Financial Reporting Standards Council: an entity mandated to review the financial reporting standards within the South African context and to propose to the Minister any amendments thereto
  • The Companies Tribunal: a new entity focusing on expeditious alternate dispute resolution mechanisms within companies as well as providing for reviews of decisions made by the Commission to affected parties

The main functions of the Companies and Intellectual Property Commission are: •Registration of companies, co-operatives and Intellectual Property Rights (trade marks, patents, design, copyright) and maintenance of these registers, inclusive of the Close Corporation Register

  • Disclosure of information on its register
  • Promotion of education and awareness of Company and Intellectual Property Law
  • Promotion of compliance with relevant legislation
  • Efficient and effective enforcement of relevant legislation
  • Monitoring compliance with and contraventions of financial reporting standards, and making recommendations on amendments to the Financial Reporting Standards Council Report, research and advise Minister on matters of National policy relating to Company and Intellectual Property Law

The Act provides for the indefinite continued existence of the Close Corporations Act, but provides for the closing of that Act as an avenue for further incorporation of new close corporations. Close corporations on the Register as of the effective date of the new Companies Act will continue to exist accordingly.

No, close corporations will not be forced to convert.

The Act provides for 2 categories of companies:

  • Non profit companies, which are the successor to companies limited by guarantee and section 21 companies; and
  • For profit companies:
    • private companies;
    • public companies
    • personal liability companies;
    • state-owned enterprises/companies

A company is incorporated by the lodging of a Notice of Incorporation and adoption of a Memorandum of Incorporation (MOI), a document which replaces the Memorandum and Articles of Association, which is the sole governing document of the company. The Act imposes certain specific requirements on the content of a Memorandum of Incorporation, as necessary to protect the interests of shareholders in the company, and provides a number of default rules, which companies may accept or alter as they wish to meet their needs and serve their interests. The new Companies act has model Memorandum of Incorporations as attachments to be adopted by incorporators, depending on whether the company is a Non – Profit or a Profit Company requiring registration.

No, those requiring the incorporation of a company will have a choice. An incorporator may choose four names and place those on the Notice of Incorporation together with the other required incorporation information for example, the directors, address of company etc. Those names are then tested by the Commission. If unsuitable for use, the registration number as provided by the Commission becomes the registered name of the company.

The other choice is for the incorporator to simply leave the section on the Notice of Incorporation dealing with names blank, which then indicates to the Commission that the incorporator chooses the Incorporation number as the name of the company.

In both cases, the full registration of the company continues as per normal.

Furthermore, the Act restricts a company name only as far as necessary to:

  1. Protect the public from misleading names which falsely imply an association that does not in fact exist;
  2. Protect the interests of the owners of names and other forms of intellectual property from other persons passing themselves off, or coat-tailing on the first person’s reputation and standing; and
  3. Protect the society as a whole from names that would fall within the ambit of expression that does not enjoy constitutional protection because of its hateful or other negative nature

Yes, there is a difference.

The CIPC’s Annual Returns:

All companies must file its Annual Return within twenty (20) business days, after its incorporation anniversary date, and together with the supplementary documents as follows:

  1. Companies required to have their financial statements audited, must file a copy of those audited financial statements
  2. Companies voluntarily choosing to have their financial statements audited can elect to file a copy of those audited financial statements, or to file a document called a Financial Accountability Supplement, a new document which contains only the prescribed pertinent financial information of a company
  3. All other Companies must file a Financial Accountability Supplement

Yes, there are major changes.

For example, •Shareholders can be represented by way of a written proxy which is valid for 1 year

  • Meetings may be conducted entirely by electronic communication or some members may participate in this manner
  • The requirement is that they must be able to communicate simultaneously
  • The notice periods for calling of meetings are:
    • 15 business days for public companies
    • 10 business days for private companies

Since the rights of debenture holders can only be altered by resolution of the debenture holders, the Act therefore provides for meeting of debenture holders. Shareholders meetings•Board or person specified in MOI may call a shareholders’ meeting at any time – upon written notice

  • Must call meeting, if one or more written demands specifying purpose are made, by at least holders of 10% of the voting rights (or lower % if specified in MOI)
  • Notice must specify : Date, time, place, purpose of meeting, copy of proposed resolutions, % of voting rights required for the resolution
  • Only a Public Company must have an Annual General meeting – 18 months after incorporation, and then every calendar year.

Resolution

  • The majority for :
    1. a special resolution is 75% of shares voted
    2. an ordinary resolution is 51%.
  • The Memorandum of Incorporation can alter these percentages, but not lower than 65% for a special resolution or higher than 60% for an ordinary resolution
  • The quorum, for all resolutions, is 25% of voting shares

The answer to this question is two-fold.

Firstly, the duties of directors have been codified in the new Act but we still keep the common law duties of directors- based on the law of contract and delict.

Partial Codification: Act introduces a partial codification of directors’ duties, which includes both a fiduciary duty, and a duty of reasonable care, which operate in addition to existing common law duties.

Secondly, Liability of directors
Director - includes alternate director, prescribed officer (CEO, MD CFO etc.), and Audit committee or board committee members. Directors will be held liable for breach of fiduciary duty, or delictual act, acting without authority, party to supplying false or misleading info about the company or untrue statement in a prospectus. This is good because it will hold directors responsible for the decisions that they take which affect the functioning and viability of the company.

Indemnification and Insurance

A company may not indemnify a director for willful misconduct or breach of trust, or for a director acting without proper authority from the company, or undertaking a prohibited act (reckless or insolvent trading), or for perpetuating a fraudulent act.

A company may take indemnity insurance on behalf of its directors in order to aid in any lawsuit against the director as related to the company. A company is entitled to claim restitution from a director of a company or of a related company for any money paid directly or indirectly by the company to, or on behalf of that director.

Yes, but the threshold is different. In order to provide a flexible regime that balances accountability and transparency, with a lessened regulatory burden, the Act provides for certain common requirements of all companies and differentiated requirements depending on their wider responsibility to the public and their social and economic impact. The following would illustrate the flexibility:

  • All companies must prepare annual financial statements (AFS), but not all require an audit
  • Public companies would be subjected to a more demanding regime and would also be required to have these AFS audited annually
  • All companies would have to file Annual Returns with the Companies and Intellectual Property Commission
  • Public companies would have to file a copy of their audited AFS with their Annual Return
  • Public companies to appoint Company Secretary [inclusive of a juristic person/partnership], Auditors and Audit committees
  • Certain private companies, which may have a greater responsibility to a wider public as a consequence of their significant social or economic impact may be required to have their AFS audited.
  • All other companies must either be audited voluntarily or independently reviewed.

Business Rescue is similar to judicial management of companies, but has additional remedies included to aid in the affective turnaround of a failimng company. Business Rescue is largely self-administered by the company, under independent supervision within the prescribed provisions as set out in the Act, and subject to court intervention at any time on application by any of the stakeholders. The most distinct feature of Business Rescue is that shareholders, employees, manufacturers, and suppliers are regarded as stakeholders and have a right to make an application for any company to be placed under business rescue and to participate in the turnaround strategy of the company. A Business Rescue Practitioner, which is a person appointed to turnaround the company has the power to suspend any agreement of a company, except contracts of employment and S35A and B Insolvency agreements. It is a democratic process as rebellious creditors/ stakeholders who are opposed to Business rescue R can be bought out after due diligence has been conducted

The Act decriminalises company law. There are very few remaining offences, those arising out of falsification of records or documents, publishing of untrue or misleading information, or refusal to respond to a summons, give evidence, perjury, and similar matters relating to the administration of justice in terms of the Act.

In the case of a company that has failed to comply, been fined, and continues to contravene the Act, the Commission or Panel may apply to a court for an order dissolving the company. Finally, to improve corporate accountability, the Act proposes that it will be an offence, punishable by a fine or imprisonment of up to 10 years, for a person to sign or agree to a false or misleading financial statements or prospectus, or to be reckless in the conduct of a company’s business.

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