1) Why should one register a Trade Mark?

Once a mark is registered there is a presumption that the mark is validly registered and belongs to the proprietor. Ancillary advantages are that if a mark is registered it will stand in the way of a third party subsequently registering the mark for the same goods or services. The provisions of the Counterfeit Goods Act further apply to protect the proprietor's of Registered Trade Marks. If you intend to register your mark abroad, a home registration is often required.
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2) If I have developed an excellent reputation in my mark, is this sufficient protection?

With an excellent reputation, one may begin proceedings to stop the third party from infringing on your mark. However one would have to prove repute. This is often difficult as many persons who offer to give evidence rescind. The Passing Off proceedings are likely to be lengthy and more expensive than proceedings for infringement of a Registered Trade Mark.
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3) I have registered my company name at the company office. Does this protect me?

Registration of the company name is no protection against a third party using your name. It stands as a bar to the Registrar of Companies registering another company with the virtually identical name. In fact, the registration of the company name does not even permit the company to use the name. (see Capital Estates and General Agencies (Pty) Ltd and others v. Holiday Inns and others 1977 (2) SA 916 (A)).This also applies to close corporations.
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4) What is the main characteristic that a mark must have to be registerable?

The mark must be distinctive i.e. capable of distinguishing the goods of the applicant from the goods of any other person. It must not be descriptive or laudatory. For example "fast" or "safe" should never be registered for motor cars. The mark "best" by itself would not be registerable. Geographical names are not registerable except as a collective Trade Mark or as a Certification Mark.
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5) Does a Trade Mark registration in South Africa give you rights in any other country? Conversely does the fact that a mark is registered in, say, the United States of America give the proprietor rights in South Africa?

The answer is no to both questions. Trade mark registrations are territorial and give rights in the country in which they are registered. However if a mark is a well-known mark in the foreign country and is known to the public in South Africa then the owner of the mark will have rights in South Africa (see Macdonald's Corporation v Joburgers Drive Inn Restaurant and another 1997 (1) SA 1 (A)).
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6) Is it possible to obtain a single Trade Mark registration covering the whole European Community?

If a mark is registered at the Office for Harmonization of the Internal Market (OHIM) in Alicante Spain, this would cover most European Community Countries.
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7) What will a South African registration cover?

It will cover the goods or services specified in the application. These goods and services are collected in classes. There are 34 classes for goods and 9 classes for services. Thus typically paper would be registered in a different class (class 16) to clothes (class 25). One should apply to register Trade Marks in all relevant classes.
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8) Does a South African Trade Marks registration cover the entire Republic or only the areas of jurisdiction of various specific courts?

South African registrations cover the entire republic. This is an important advantage over passing off proceedings where one must prove repute in the area of jurisdiction of the court in which one brings proceedings.
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9) Can Trade Marks registrations be assigned? Can pending Trade Mark applications be assigned?

Yes.
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10) Can the proprietor of the mark permit a third party to use the mark without violating his rights?

Yes, provided the proprietor maintains control of the quality of the goods or services being provided. If the proprietor wants to regulate matters in more detail it may be desirable to register the user as a permitted user of the mark. However, it is not always necessary to register the user.
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11) What happens when a person owns a trade mark and does not use it?

If a person has not made bona fide use of Trade Mark for a period of five years after registration the mark can be expunged on the ground of non-use.
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1) I have an invention. What should I do?

First and most important is not to disclose the invention until you decide whether to proceed with a Patent application or not. If you decide to apply for a Patent for the invention keep the invention a secret until the Patent Application is filed. It is best to consult a Patent agent or Patent Attorney for advice as to whether the invention is capable of obtaining Patent protection.
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2) Why should I patent an invention?

If you do not patent the invention (or obtain design protection for it) you are effectively gifting the invention to the public. You will have no enforceable rights in the invention.
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3) If I keep the invention secret is that not prefferable as compared to patenting it?

Only for certain inventions - although a recipe, consider the Coca-Cola formula. However, if a person not bound to you learns the secret you have no rights. Most inventions that are made public are exploited and no longer secret.
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4) I have bought an item from abroad. Can I patent it?

No, a valid patent is granted for an invention that is new both in South Africa and the rest of the world. Because you bought the item abroad, it means it was on sale there and consequently is not new. If you have to modify the item for South African conditions, the modification may be patentable, although not the item you bought.
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5) How long does a patent last?

Twenty years from the date of filing the complete specification (so long as all annuities are paid timeously). If the patent is based on a PCT application, the term is twenty years from the date of filing the PCT application.
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6) What is the PCT?

The PCT is the Patent Co-operation Treaty to which South Africa and about 110 other countries are signatories. By filing a PCT application, an applicant has an extended period (30 or 31 months depending on the country) from the priority date for filing an application in any country that is a member of the PCT.
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7) In South Africa one can file an application accompanied with a provisional specification. Why should one do so?

First, an application accompanied with a provisional specification is less expensive than filing an application accompanied with a complete specification. Second, the invention may still require development or debugging. A second application accompanied with a provisional specification may be filed for the development or modification to debug the invention. A single application accompanied by a complete specification may cover both inventions.
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8) How long may one delay filing an application accompanied with a complete specification after initially filing the application accompanied by the provisional specification?

12 months. However on payment of a small fee, one may delay the filing for an extra three months (should the provisional be filed in South Africa).
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9) What country does a Patent cover?

Only the country in which it is filed and granted. Thus a South African patent only covers South Africa. A US patent or a British patent does not cover South Africa. However, through our network of professional associates around the world, Galgut & Galgut is able to file international applications on behalf of our clients.
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10) Within what period should one file an application for a Patent of an invention outside the Republic of South Africa?

Within 12 months of the first application for the invention. This time is fixed and there are no extensions granted. The PCT application must also be filed within this time frame.
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