Prevent IP Infringement

Prevent IP Infringement

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What do you do if someone starts making money from your hard work? As anyone whose livelihood depends on making software programmes, producing films, writing songs or penning books knows there’s nothing worse than having someone copy your hard work and make easy money from it. Anyone can copyright their intellectual property, but what do you do when you come across an offending party earning money from something you produced?

A recent example of a US company which distributes voice-recognition software to South Africa is a case in point. Two years ago a local firm clinched the sole rights to distribute the American company’s software. The overseas software company then informed local retailers who were already selling its product here that they should deal exclusively with the local distributor. But barely a few months later, complaints began rolling in from clients who had bought the software from two local firms in Cape Town and Pretoria. Some complainants said that they had ordered the product and it had failed a few weeks later. Others said they had paid for the product online but never received it. It later emerged that the two local firms – the one being an official reseller of the local distributor were selling inferior, pirated versions of the software which sometimes didn’t work as they required an activation key. Customers even complained that representatives of the reseller were installing the software with a flashdrive, instead of the CD which came with the box when it was purchased.

Complaints stream in

The local distributor received at least 20 complaints from customers who bought this particular product through two sources in the country. The distributor has since taken a decision to freeze the reseller’s account, while the overseas software license owner is considering laying a case of fraud against the other firm, whose owner already has a fraud record. The US owner of the software, whose copyrighted mark appears on its website, is now considering legal action in an attempt to recover lost income, and a campaign to call on customers who have been sold pirated or shoddy copies, to come forward.

Software progammes, musical works, artistic works, films, literary works such as books, reports and speeches can all be copyrighted and Faan Wolvaardt, the Trade Marks Manager with Bowman Gilfillan says it is easy for someone to copyright something. If a work qualifies for copyright protection all one needs to do is display a notification (or marking) of this on the work itself. This could, for example, be the copyright sign or a more elaborate mark detailing that the product is protected under the Berne Convention (which has been in operation since 1886 and offers copyright protection in many countries of the world) in various formats.

Trademark option

One can also opt to take out a trademark of one’s intellectual property. A trademark is a sign or a word which offers more options should you need to take an offending party to court, says Wolvaardt. A trademark can be registered under the Trademarks Act and renewed indefinitely, while a copyright has a restricted, albeit long, life of 50 years.Wolvaardt says that if you discover that another party is infringing your copyright, a simple letter of demand can be sent out to the offending party, requesting that they desist from their activities immediately. If this fails, you can then seek a court interdict in a bid to get the other party to stop selling your product.

Remedies are available

When the matter appears before court an applicant can ask for a number of remedies, including:

  • An interdict restraining the unlawful action
  • Delivery for destruction, where the offending party is ordered to hand over all the offending products for destruction
  • An account of profits, where one requests a breakdown of how much was sold by the respondent in a bid to reclaim damages, being either lost income or a reasonable royalty on the sales
  • Damages for reputation, which can be calculated either as actual damages or as a reasonable royalty.
Stephen Timm is a freelance writer at Entrepreneur Magazine.