Over and above the perennial issues of rack rates and preferential rates for SA citizens, the issue <http://www.tourismupdate.co.za/home/Detail?articleId=106631> of the Blue Train look-alike website raises the issue of intellectual property (IP).
IP includes copyright, trademarks, patents and design registration. This article will (briefly, as it is a very complex issue) address the first two, which can be defined as follows:
- The exclusive and assignable legal right, given to the originator for a fixed number of years, to print, copy, publish, perform, license, film, or record literary, artistic, or musical material, whether printed, audio*, video*, etc works granted such right by law on or after January 1, 1978, are protected for the lifetime of the author or creator and for a period of 50 years after his or her death.
- Copyright holders should warn outsiders thereof. This can be done at end of a written document and at the bottom of each page insert ‘©’ and the name of the copyright holder and the date and, where it is a more extensive and permanent document, appropriate and more detailed wording regarding copying, use etc is required.
- *The same applies to other forms of copyright.
- Unlike trademarks, there is no register of/for copyright, so ‘warnings’ as suggested are imperative.
- A trademark is anything that distinguishes your product or service.
- It could be a name, a word, a logo or shape (e.g. the small Coke bottle), etc provided it is distinctive and is capable of visual presentation.
- You identify and warn other parties about your trademark by using the letters ‘tm’ initially and, once the trademark is registered, the letter ‘®’ – Note that it is illegal to use the latter until the trademark is in fact registered.
- Once registered, trademarks are protected for periods of 10 years, renewable every 10 years at a nominal fee.
- Note that you do not have to register a trademark to have protection – use of a word, a name, logo, etc. will result in such name, logo, etc. acquiring distinctiveness and therefore common law rights. You may also use the letters ‘tm’ with such a name, logo, etc.
- However the benefits of a registered trademark are, inter alia, ease of proof (i.e. simply produce trademark certificate), enhancing the value of your brand upon sale of business and 10 years’ statutory protection.
What has happened in the Blue Train matter is not uncommon and you only have to look at the proliferation of websites regarding the Kruger National Park, KZN Wildlife, Pilanesberg and derivatives thereof to see how common it is. It is sometimes quite a challenge to find the official website!
Clearly where the owner of the IP grants the right to the use thereof to a third party (‘the User’), ideally (1) permission should be recorded in a written agreement; (2) the user should be obliged to use the relevant ‘warning’ & (3) to acknowledge the ownership of the IP.
Even if your trade mark is registered, the ‘unrestrained’/’uncontested’ use thereof e.g. ‘Please Hoover the carpet’; ‘Please Xerox the document’ or allowing another business to use IP similar to yours can not only create confusion in the market place but it also erodes the inherent value and raison d’être of the trademark and, if not objected to forthwith, may result in the trademark being expunged (struck off) from the records in the offices of CIPCO (formerly CIPRO).
It is important that you align all the above IP with your domain and business name (company, close corporation, partnership or trust) as it will not only protect your IP but also your brand. This will stand you in very good stead if you one day wish to sell your business and ‘ride off into the (retirement) sunset’!