Brands, designs, copyright & patents – a bundle of rights
8/11/2011

What is the difference between a brand and a patent and when can I rely on copyright? The public may not always be aware of their rights and when they can rely on them.

Let’s look at one of the iconic symbols of the 20th century, the original Coca - Cola Bottle.


The first aspect that strikes you is the well-known COCA - COLA brand or trade mark. You can register a brand in terms of the Trade Marks Act. A mark is any sign that is capable of being represented graphically, including a device, name, signature, word, letter, number, shape, configuration, pattern, ornament, colour or a container or a combination of these elements. There are many examples of such marks or combination marks e.g. BMW Z3, the COCA - COLA logo, the colour pink that is associated with AEROLITE insulation, the smell associated with JOHNSON’S baby powder and the shape of the original COCA - COLA bottle.

A mark must be capable of being represented graphically e.g. the scientific formula of a perfume or the Pantone colour code, but for any mark to be registered, it must be distinctive. What does it mean?

A mark must be capable of distinguishing a brand owner’s products or services from those of others. For that reason, a descriptive term such as BROWN BREAD cannot be registered as the brand name for brown bread.

Let’s look at the COCA - COLA bottle again. The word COCA - COLA in block letters and the specific COCA - COLA script, can be registered as trade marks. Similarly, the bottle itself has a very distinctive shape and has been registered as a container mark.

Many people are unaware that it is possible to register aesthetic designs in terms of the Design Act. Any aesthetic design which can be applied to an article, whether for the pattern or the shape or the configuration or the ornamentation or a combination of these purposes, can be registered. There are a few additional requirements however. An aesthetic design must have features which appeal to and are judged solely by the design (regardless of the aesthetic quality). The design must be intended to be multiplied by an industrial process and the design must be new, with reference to the state of the art at the time. When the COCA - COLA bottle first came on the market, it may have been registrable as a design. The state of the art is a reference to what designs are in use internationally or which may be available to the public. Designs which may be registrable include designs of furniture, lighting, jewellery, 2-dimensional graphic designs, packaging designs, car designs etc.

Copyright is another aspect that is part of the bundle of IP rights. The Copyright Act protects certain words which are original. The COCA - COLA composite logo would have been the subject of copyright, as an artistic work. The product information that is usually found on the back of a product label may qualify for copyright protection, as a literary work.

Lastly, the formula of the COCA - COLA cold drink may originally have qualified for protection as a patent.

Patents and aesthetic design registrations provide the owner with a limited monopoly of 15 and 20 years respectively. Copyright protection generally lasts for 50 years after the author’s death. Trade mark registrations expire after 10 years, but can be renewed for further periods of 10 years.


There are many different rights – some can be registered and some come into existence automatically; some may have expired. Always talk to an IP specialist for advice on your specific issues.

Mariëtte du Plessis
Partner
mariette@adamsadams.co.za


COCA-COLA, the COCA-COLA (script) trade mark and the bottle container are registered trade marks of The Coca-Cola Company