South Africa Intellectual Property Law
Classification
The International Classification of Goods and Services under the Nice Agreement (9th edition) currently applies, although South Africa has not acceded to the Nice Agreement. A separate application is required for each class
Convention priority
South Africa is a member of the Paris Convention. An applicant for a trade mark who has applied for the same trade mark in another Paris Convention member country, is entitled to a priority right. This accords them the same effective date as the first filed application, provided the South African application is filed within six months of such earlier filing date.
Examination/procedure
An application is first examined as to formal requirements. Thereafter the application is examined to determine inherent registrability and/or conflict with prior applications and/or registrations. The grounds for refusal of registration correspond broadly with the grounds of opposition (see the section on Grounds of opposition below).
If the application is found to be acceptable, the acceptance must be advertised in the Patent Journal.
Opposition
Any interested person may, within three months following the advertisement of the trade mark application in the Patent Journal, lodge an opposition to the registration of the trade mark.
Extension of the opposition period is available for an initial period of three months by way of a request to the Registrar. Further extensions can only be obtained with the consent of the applicant, or on the basis of good cause shown on application to the Registrar.
Duration and renewal
A trade mark registration is effective for an initial period of 10 years and, thereafter, is renewable for similar periods in perpetuity. Provision is made in the Regulations for late payment of the renewal fee (upon payment of a fine) and for the restoration of a lapsed trade mark in cases where the Registrar is satisfied that it is just to do so.
Subject matter eligible for protection
The following works, if they are original, are eligible for copyright:
- Literary works
- Musical works
- Artistic works
- Cinematograph films
- Sound recordings
- Broadcasts
- Programme-carrying signals
- Published editions
- Computer programs.
A work (except a broadcast or programme-carrying signal) is not eligible for copyright unless it has been written down, recorded, represented in digital data or signals, or otherwise reduced to material form.
The requirement of originality has been interpreted by the courts to mean that the author must have expended creative effort, labour and skill in creating the work.
Registration of copyright
There is no provision in the Act for the registration of copyright. Separate legislation provides for the registration of copyright in films (see the section on Registration of copyright in films below).
Duration of copyright
The term of copyright is different for different categories of works but is never less than 50 years:
- In respect of literary, musical or artistic works other than photographs, the term is the life of the author plus 50 years from the end of the year in which the author dies (there are special provisions for unpublished works)
- In respect of cinematograph films, photographs and computer programs, the term is 50 years from the end of the year in which the work is made available to the public with the consent of the copyright owner, or the end of the year in which the work is first published, whichever term is longer, or failing this, 50 years from the end of the year in which the work is made
- In the case of sound recordings, the term is 50 years from the end of the year in which the recording is first published
- In the case of broadcasts, the term is 50 years from the end of the year in which the broadcast first takes place
- In the case of programme-carrying signals, the term is 50 years from the end of the year in which the signals are emitted to a satellite
- In the case of published editions, the term is 50 years from the end of the year in which the edition is first published.
Special provisions provide for anonymous or pseudonymous works and works of joint authorship.
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