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DESIGN INDABA 2014

protect@adamsadams.com

ICC CPT 27.02-02.03 STAND: 917


Adams & Adams : Newsletter 2014

As proud associates of the 2014 Design Indaba, we are count ing down to this year’s conference with excitement. It is inspiring to be associated with the Design Indaba and to witness local creativity in action. Local design encompasses a wide range of creative endeavour, including art, jewellery, furniture and more functional items such as ceramic crockery. Every year there is something new, beautiful or clever to catch our interest. Such creativity should be rewarded – but as imitation is said to

An important reality to confront is that ideas without more cannot generally be monopolised. Once mere ideas/concepts are disclosed, our law generally permits their being copied and developed upon - as long as the copying is in the spirit of free and lawful competition, and does not contravene any recog nised rights. There are only some limited exceptions and, in

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by the function of the article). Registered designs are available in relation to products which are new and original, or not commonplace. It is therefore important not to destroy your design’s novelty yourself by e.g. exhibiting or selling it until such time as a design application has been lodged. There is a 6 month grace period in South application – but in the meantime any pitch should at least be An aesthetic design registration is valid for a maximum of 15 years, and a functional design for 10. Trade mark registration Another powerful way to protect designs might be through trade mark registration. If a design is of e.g. a shape or graphic that is distinctive and that is used or intended to be used to distinguish the goods and/or services of one trader from those of another, it can be registered as a trade mark. It is, however, not possible to

invest in securing exclusivity early on. There are a variety of statutory and other options secure the and artists and designers would do well to be mindful of some of them: Copyright In South Africa, copyright arises automatically in e.g. original artistic works, supplying the relevant author the exclusive right to reproduce, publish or adapt such works. It is not possible or necessary to register copyright in such works in South Africa – but it is advisable to mark copyright works with the © symbol. It is notable that copyright in artistic works - with primarily a utilitarian purpose and that are made by an industrial process is not infringed by third parties making available to the public three-dimensional reproductions or adaptations of any three-dimensional reproductions of such artistic works that have already been made available to the public (either in South Africa or elsewhere) by the copyright owner. Design protection may better assist to protect such works (see more on that below). Copyright in artistic works exists for the lifetime of the author, plus 50 years. As a designer you will retain copyright in artistic works you create, unless such work is created in the course and scope of your employment (in which case will be owned by your employer) – or unless it is assigned in writing to a third party. Design registration Another arrow in the designers quiver is design protection. In South Africa it is possible to protect aesthetic designs (which an article, the article having features which appeal to and are solely judged by the eye, and irrespective of its aesthetic quality); and functional designs (including the pattern, shape

nature of the goods themselves. Such aspects might be better protected via design or patent registration. As long as trade marks remain distinctive, are renewed and in Other precautions In all cases, it is recommended that designers keep detailed records of the creation of their works, along with sales and rights at any point. Be mindful that there is no rule of thumb regarding any work that might automatically supply you with a defence to a claim of copyright or design infringement. An infringement assessment will be a subjective matter for a court to decide, based on statutory provisions and precedent. In addition to supplying more easily enforceable rights and remedies, registration of intellectual property makes it easier to secure funding and ultimately to negotiate licenses, royal ties or transfers of your rights. If you are in it not just for the love of the art, timely protection and ultimately commercialisa tion of your creative endeavours must be a priority.

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Finally, there is a range of legislation in South Africa that regulates the claims you can make about your products, and liability in relation to the supply of goods and services, and these warrant equal attention when launching a product. We look forward to seeing what this year’s exhibitors will share with us and are excited to follow the – hopefully well-secured trajectory of our inspiring and creative local designers. Theresa Wright

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Adams & Adams : Newsletter 2014

Design process of the Adams & Adams ad for Migrate magazine, designed by Atang Tshikare.

Instructions and payment to design an ad for Migrate magazine

Atang Tshikare Freelance graphic designer t/a Zabalazaa ™ Final version in Migrate Magazine which is protected by copyright

Ideas put on paper

Mariette Du Plessis 03


Adams & Adams : Newsletter 2014

Here are some ideas: • Make and sell the design yourself. • Appoint a manufacturer, but sell the products yourself. • License the design to someone else so that they can make and sell it. • You can even start a franchise. • You could also sell the design. Danie Strachan 04


Adams & Adams : Newsletter 2014

NEW DESIGN / INVENTION? Yes

No

Is it a technical concept or a visual design? Technical

Keep working at it!

Both

Consider patent protection

Visual Consider design/ copyright protection

Still new and secret? No

Industrial

Yes

Both

Consider design protection New or disclosed less than 6 months ago?

Too late. Remember for next time.

industrial design?

No

Copyright protection It’s free, but certain requirements must be met. Contact Adams&Adams

Yes

potential for patent? Yes

No

File patent application! Contact Adams&Adams

potential for design? Yes

No

File design application! Contact Adams&Adams

James Davies 04


Adams & Adams : Newsletter 2014

There is copyright in photographs, right?

Yes, photographs are protected as “artistic works� under copyright laws.

Who is the author (creator) of the photos?

The person who is responsible for the composition of the photo is the author for purposes of copyright laws.

Ok, so does the photographer always own the copyright? Tell me about it?

exceptions. Well, if the photographer is employed by a newspaper or a magazine, and the photo is for publication in the newspaper or mag, they will own the copyright. BUT, they will only own the copyright for publication in a newspaper or a mag - the photographer owns the copyright in the photo for everything else. He could, for example, publish a collection of his photos in a book etc..

That sounds great! Ok, but what if someone commissions me to take a photo? Oh, ok, are those the only 2 exceptions?

Really, is that always the case?

Well, if the client commissions you AND pays you, the client will be the owner. Actually, no, if you are working for a photographic studio or an ad agency or any other company or business, like a bank, and you take photos in the course of your employment, under either a contract of service or apprenticeship, then your employer will own the copyright in those photos. No, you can always change all of these exceptions, but this must be agreed upfront. So, if you are employed by an ad agency or a client commissions a photo, you can always say that you want to retain all or some of the copyright. Obviously, if your employer or the client is not prepared to, you will have to stick to the rules. Just remember to get that agreement in writing. Be sure you know what rights you have.

Mariette Du Plessis 05


Kraftisan’s Trade Mark Application Process


Meet Lucas...

Emerging Creative 2012

Adams & Adams


The Pinup Puzzle

The Luna Light

Trade Marks & Registrations : Kraftisan Case Study


His business name is also his trade mark and, while he has been using it all along, he did not have any registered rights in it. Luckily, during the Design Indaba 2012 Expo, he won a prize from Adams & Adams (aka @Cr8veDesignLaw) which consisted of a free trade mark search

That’s Lucas claiming his prize for a free trade mark application. (John looks excited too!)

Adams & Adams


application for the mark:

Trade Marks & Registrations : Kraftisan Case Study


Filing a trade mark in black and white covers all colours and gives you the broadest protection possible

Adams & Adams


(subject to certain conditions) by the Registrar of Trade Marks. If his application is not opposed by any 3rd parties, it should be registered in about 12 – 18 months. Once it’s registered, he can stop third parties from using his trade mark or any mark that looks confusingly similar to it in relation to the same or similar services.

Trade Marks & Registrations : Kraftisan Case Study



Design and Protect 2014