In addition to the various forms of protection discussed so far, a product design may enjoy some measure of protection on the basis of the principles of common law (law not found in Acts of Parliament) in common law countries and in certain other laws. Under common law you, the creator of a design, may be able to prevent others from exploiting a confusingly similar version of your design on the basis of passing it off to the public as yours; or prevent others from reaping the commercial benefits and advantages of your design by appropriating to themselves a substantially similar design and exploiting it in circumstances amounting to unfair competition.
The law of unfair competition provides, in general, that anyone who intentionally or negligently causes loss or damage to you, a business rival (ie a competitor), through his wrongful conduct , will be liable for damages, and his conduct can be stopped or prevented by way of an interdict.
The following are situations where your rights may be wrongfully affected:
- where someone imitates the distinctive appearance, trade name, get-up, etc, of your products so as to deceive or confuse the public into taking his products as those of yours, ie so-called passing off;
- where someone deceives the public as to the quality, extent, nature, etc, of his own goods or service;
- where someone carries on his business in contravention of the law;
- where someone spreads disparaging and untrue allegations about your goods, service or business;
- where someone acquires and uses (without authority) your confidential information or trade secrets; and
- where someone appropriates to himself the fruits of your skills, labour and expense, eg by too closely copying his competitor’s (your) product designs.
The cost for South Africans of obtaining legal protection elsewhere requires a carefully planned strategy including marketing, finance and cash flow projections, based on realistic cost projections. You must consult an experienced IP practitioner for assistance.
All forms of legally recognised intellectual property protection are only enforceable within the area of the country’s legal jurisdiction. This includes other African or overseas countries, which operate independently when it comes to the protection of intellectual property. For this reason you need to file patents and register trademarks and designs separately in these countries, as has been discussed.
Note that some countries are signatories to international protection agreements and others not. This means that if they are signatories, they will honour the date of your filing or registration in this country, provided that you lodge your application for protection in their country within the prescribed time.
For those countries that are not signatories to any international agreements relating to protection of intellectual property, you need to register or file separately in those countries. Your nearest patent attorney will be able to give you more information on such countries. Alternatively, contact the Patents Office in Pretoria (see address list, page 21).