Sharing is not caring – It’s in your NDA
19 Sep 2018
Do not disclose confidential information, new designs, ideas or inventions without appropriate protection in place – a non-disclosure agreement (NDA).
You may lose the chance to obtain any protection for your intellectual property (IP) if you do not register the IP before you disclose a design or invention to another person or business. As a general rule, confidential information can no longer be protected once it is in the public domain. You can avoid losing protection by disclosing the design, idea, invention or other confidential information to another person under the protection of a non-disclosure agreement.
Make sure it is clear that the non-disclosure agreement covers the information you are disclosing and that the terms of any non-disclosure agreement are appropriate. If the information is valuable we recommend seeking legal advice before disclosing the information and for preparation of the agreement. Avoid downloading NDA examples from the internet.
If your idea is worth protecting, ask a lawyer to draw up the agreement for you.
There are a number of types of IP that can be registered which include trade marks, design rights and patents. IP can be one of the most valuable assets of a company’s business, as it can prevent competitors from using your brand name for similar goods or services, add value to your company by giving it assets which it can licensed, and can be used to demonstrate your company’s worth to potential investors.
It is worthwhile considering IP registrations from the early stages of any business, and developing an IPfiling strategy, as many jurisdictions operate a “first to file” registration system and you may lose the possibility of obtaining any protection if you do not register the IP before you disclose your design or invention to the public.
You should take steps to register IP in jurisdictions that are relevant to your business. Registration is crucial to protect and commercially exploit your IP.
What is a trade mark?
A trade mark, generally speaking, is any mark used, or proposed to be used, to identify goods or services, and to distinguish those goods and services from a competitor’s products or services. That ‘mark’ can be any sign that can be represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods, or any combination thereof. A ‘device’ can be any visual representation.
What is a patent?
A patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent. A patent is a limited property right the government gives inventors in exchange for their agreement to share details of their inventions with the public. A patent is a right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter. Like any other property right, it may be sold, licensed, offered as security, or transferred.
What is copyright?
Copyright protects the form of expression of ideas, not the ideas themselves. Many types of works are protected by copyright, such as product literature, content on your website, photographs, drawings, software, films, paintings, logos, lyrics and compositions, etc. Our copyright laws protect the copyright owner against anyone who copies or otherwise reproduces or adapts the work without the owner’s consent. A created work enjoys copyright protection and is protected as soon as it exists, provided that it is original and meets all the requirements.
As copyright is an unregistered right, you should include a copyright notice on your website and marketing materials to alert third parties of your rights.
For individual works you can use the © symbol as follows: “© 2018 Adams & Adams”. The year indicates when the work was made available to the public.
What is a registered design?
South Africa has many talented designers active in the field of furniture and lighting, cutlery, crockery, furniture designs, textiles, jewellery and wine and product labels.
South African designers and their product designs are highly regarded both locally and internationally and many of them have exhibited, and sold their products overseas. Some of the local trend setters are Haldane Martin, Heath Nash, Maxhosa by Laduma, Atang Tshikare, Gregor Jenkin and Anatomy, to name a few. Many local architects have become involved in designing furniture and interiors to complement their designs. Architects Silvio Rech and Lesley Carstens are pioneers in this field. Design protection is an area that is often underestimated and ignored by local designers.
Aesthetic and functional designs can be registered in South Africa. Functional designs are designs that have features which are necessitated by the function of the article to which the design is applied and are to a lesser extent relevant for this discussion. Aesthetic designs are however very relevant in the world of designs and can be utilised to obtain strong statutory protection for a period of 15 years.
- Business owners and corporates need to spring clean IP portfolios
- Phase I of South Africa’s IP Policy – What you need to know