What happens if another company infringes on the intellectual property rights of...

What happens if another company infringes on the intellectual property rights of a business that produces software?


What is Intellectual Property?

Intellectual Property (IP) is a product of the intellect that has commercial value, including copyrighted property such as literary or artistic works, and ideational property, such as business methods and industrial processes. Intellectual Property is a collective term for trademarks, patents and copyright.

What to do if someone infringes on your intellectual property rights?

If someone infringes on your intellectual property (IP), you need to act as soon as possible to protect your rights. “There is a myriad of reasons that constitute infringement. If someone copies and pastes source code that you have written and then uses it in their software program that would be seen as infringement.

This means that you as the creator of the code should take action,” advises Pieter Venter, patent attorney, Hahn & Hahn. “If you have registered a trademark you are in control of the ‘ownership’ of the product,” explains Claire Bothma, trademark attorney, Adams & Adams. “Therefore, if someone infringes on your intellectual property consult an attorney who specialises in this area as soon as you can,” she advises.

Licence Agreement

Copyright refers to legally protecting rights to publish and distribute software material. This means that only the developer and authorised sellers have the right to copy and distribute computer software. This is why it is important to have license agreements.

When a consumer buys software, they only purchase the right to use the software under certain conditions. These conditions are specified in the license agreement. When you install the software, you have to agree that you have read and will accept the terms and conditions of the license agreement.

When you do this, you are agreeing to the developer’s rights under copyright law. “Once you have a registered trademark and you wish to sell the software on the open market, you will require a license agreement. This should be written by a professional,” advises Bothma.

Determining legal costs

Attorneys are allowed to charge for work done in two different ways:

  • Charge an hourly tariff as agreed between the attorney and his/her client
  • Charge a percentage of compensation recovered for the client.

The rates of attorneys vary according to the experience and level of expertise. These can be start at R450 per hour for the services of a newly qualified attorney, to anything from R800 to R3 000 an hour if you have an attorney with a lot of experience.

You can also be charged for the lawyers expenses:

  • Correspondence charges ( faxes, letters, etc)
  • Travelling expenses
  • Cost of printing copies of documents
  • Postage costs
  • Witness fees
  • Paying experts for reports
  • Payment for copies of police records
  • Revenue stamps (summons) Advocates fees (if these services are required they are very expensive)
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