SOUTH AFRICA Law and Practice Contributed by: Daniel Pekar, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
The most important document accompanying the application is the Statement of Case. This must be verified under oath, as it outlines all the facts pertain - ing to the copyright in the film, such as: • name of the film; • name, citizenship, and country of domicile of the author; • circumstances outlining that the applicant is in fact the author of the film; • date and place at which the film was made; • whether the film has been made available to the public and, if so, the date that this occurred; • whether the film has been published and, if so, the place and date that this occurred; • a brief description of the subject matter of the film; • names of the director and producer of the film; • name of the narrator or main character of the film; and • any trade marks used in relation to or on the film or any other features that distinguish it from other films. The official fee to register the copyright in a cinemato - graph film is ZAR510 (roughly USD32), but the pro - fessional fees will differ depending on the firm that The Registrar may refuse the application if any of the prescribed requirements and information referred to in 3.8 Copyright Application Requirements have not been met/provided. Furthermore, if the Registrar is of the view that copyright does not vest in the film, they may also refuse the application. The applicant will be notified of the Registrar’s deci - sion to refuse the application – following which, the applicant has a period of three months to challenge the refusal by submitting written arguments to the Registrar. Any incorrect information/clerical errors may be corrected on application by the applicant to the registry. 3.10 Related Rights Copyright and trade mark rights co-exist and are com - plementary to each other. By way of example, copy - right will vest in a logo (provided the requirements for assists with such an application. 3.9 Refusal of Registration
subsistence are met) and a trade mark application can be filed for that same logo. The scope of copyright law is not limited based on trade mark rights.
4. Trade Mark Registrations and Applications 4.1 Trade Mark Registration
Strictly speaking, it is not necessary to obtain a trade mark registration in order to have trade mark rights. The owner of the trade mark will acquire common law rights in and to the mark by using it in the course of trade. By registering a trade mark, the owner of the mark obtains a prima facie statutory right in and to the mark and the registration certificate serves as proof thereof. There are not any separate standards for register - ing different types of trade marks. The overarching requirement is that the trade mark must be distinctive, as outlined in 2.2 Essential Elements of Trade Mark Protection . 4.2 Trade Mark Register There is a single trade mark register in South Africa and it is publicly available. The register is administered by the Companies and Intellectual Property Commis - sion (CIPC). It is standard practice to conduct an availability search prior to filing a trade mark application. That said, the search is not a technical requirement to file a trade mark application. It is merely a risk mitigation strategy and is not compulsory, as an applicant may elect to file a trade mark application directly (without conduct - ing an availability search). The primary database that is searched is the Trade Marks Register – although searches typically include “secondary sources” such as the Domain Names Register and the Company Names Register. Furthermore, general online searches on search engines and social media pages are also conducted, given that a third party may be using the same or similar trade mark (without registering it).
503 CHAMBERS.COM
Powered by FlippingBook