Protecting intellectual property

Johannesburg - The protection of intellectual property (IP) might not be the first on a business's 'to do' list but as enterprises mature, it can and will become crucial.
Just ask OrangeInk, a public relations firm, and Orangeworks, a software company.
These two businesses are joined by a common experience: they both faced down Orange in court after the multi-national telecoms firm attempted to have them drop the word orange from their corporate identities.
Although successful, the experiences of OrangeInk and Orangeworks raise an important question about IP: how to capture it in a corporate identity while staying out of court?
One rule to know is that enterpreneurs are not necessarily stepping on the toes of established brands if they happen to operate in different sectors.
Says Orangeworks CEO, Siegfried Rousseau of the company's court case against Orange: "It cost hundreds of thousands, but I felt we had a strong case because we are in a different industry."
He was right.
But businesses beware. If two companies with similar names offer similar services, or something similar in how they carry out business, then there are problems, says Herman Blignaut, a partner at Spoor & Fisher, intellectual property (IP) specialists.
Quite frankly, using a generic term like orange is not the best idea. It's not distinctive enough to warrant trademarking, says Blignaut.
That being said, generic branding of a business is acceptable if the name has no descriptive value in relation to the business such as Apple, says Blignaut.
He advises, however, that entrepreneurs should opt for distinctive names, quirky even. "You can make up names, such as Kodak,” he says.
Interestingly, colours have also been contested between established businesses and new market entrants.
UK-listed confectioner Cadbury, for instance, has fought to trademark that particular hue of purple that wraps its calorie-laden chocolate bars.
It has so far failed, however. Yet a combination of colours can be registered. The green and yellow combination is clearly associated with British Petroleum, for example. Different services and products in the business can also be registered.
“IP has massive value, so register it," says Doug De Villiers of branding agency, Interbrand Sampson. "Think of when you become bigger one day."
Offering a contrary view is Bruce Wade who runs Entrepreneur Incubator. He believes it’s not absolutely necessary for small businesses to register to trade marks in South Africa. “The laws are different here, and not everything is owned like in the US.”
"It's important for business owners to ask themselves what exactly they’re protecting and why. Is the name of the business becoming the name of a product, does it link directly to income?" he asks.
It's worth considering that the registration process protecting IP can be an admin chore. It costs a mere R5 000 to R6 000 to register a trademark and while that hardly breaks the bank, it has to be renewed every ten years.
Entrepreneurs also face a three to four year wait for certificates. The complex process, coupled with inevitable backlogs, sees some applicants not following up on the process, or turning to lawyer, which then hikes up prices.
One final word of warning. Trademarks must be registered with the Trade Marks office not just with the Registrar of Companies which does not protect trademarks.

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