A website is a window to a business. When establishing a website for your business, it is essential to make sure you incorporate policies and documents in which you address matters such as the service terms, terms on user access, privacy/ data protection and liability disclaimers. [For more information on this click here for access to our Website Compliance Checklist]. However, in addition to adding these important policies and terms, it is vital you ensure that your own intellectual property (“IP”) is fully protected and that you do not infringe upon the IP right of others.
It is easy to underestimate the amount of valuable content that your business website hosts. Ideally, you should attempt to legally protect certain aspects of the website as soon as development and implementation of your website has begun as an impersonating website can put your business creditability at risk or may confuse your clients/consumers. For this reason should you use the services of web developers, designers or other third party contractors to create your business’s website it would be advisable to sign a confidentiality or non-disclosure agreement (including reference to the protection of intellectual property) and/or development agreement, with these parties. This type of agreement will help to protect your business’s trade secrets and/or confidential information disclosed during development and implementation of the business website and the ownership and protection of intellectual property.
With regards to the website content – South African copyright law provides for all copyright to be automatically protected once the original work is created and has been reduced to a material form. This means that if you create and publish something new on your website, such as a blog post or new page content, the South African Copyright Act will automatically provide you with copyright protection for the work. Although a copyright notice is not required by law, having such a notice displayed on your website (for example: “Copyright © 2021 DKVG Attorneys. All rights reserved”) will assist in giving your website visitors notice that the content displayed belongs to your business and can not be copied or used without the necessary authorisation.
Trademarks are another significant form of IP that should be protected and displayed as such on your business website. Trademarks are any words, phrases or logos (device) that are associated with your business’s brand and that assists your customers/clients in distinguishing your services or products from the services or products of other competitor businesses. A South African trademark registration will ensure that these other competitors cannot use a similar trademark in respect of similar goods or services within South Africa. During the application phase of a trademark the mark can be placed next to the mark or device. Once granted, you will be able to display the trademark on your website with the symbol ® next to it (indicating that the trademark has now been registered). This registration will remain in force for 10 (ten) years, whereafter it can be renewed for another 10 years of protection. It is further good practice to obtain the necessary consent from the trademark owner before using another person’s trademark on your website.
Another form of IP that your business may need to register (when applicable) is a patent. Essentially a patent is a license that the registered owner gets from the government that gives the owner the legal right to exclude all others from making, using, exercising, selling or offering to sell an invention (covered by the patent) for a period of 20 years, subject to renewals. Your business website may incorporate a software invention that is eligible for patent registration and protection. This sort of invention will need to be registered prior to disclosure thereof. For more information on how to protect a software related invention contact us and ask for the Technology and Intellectual Property law department.
Should your business website incorporate or publish any works belonging to a third party, it will be important that you ensure to obtain the written permission from such third party before doing so. Any reproduction, adaption or communication of such third party work on your website may constitute infringement. Usually the incorporation of links to third party website do not constitute infringement, however, when publishing such a third party link it will be useful to ensure that you do not suggest any endorsement or affiliation with these third party websites, unless this is the case. Keep in mind that the saying “everything on the internet is for free” is most definitely not true.
Protecting the IP on your business website is vitally important and can form part of a broader strategy for identifying, protecting and exploiting IP within your business. It will allow you to enjoy the security and peace of mind that comes from the assurance of knowing that your IP is adequately protected and that you do not infringe upon the IP rights of others. Contact us today in order to assist you and your business in legally protecting aspects of your website and IP before it is too late.
Written by Claire Gibson
This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.