Article: Section 25(1) of the Constitution of the Republic of South Africa, 1996 states that people should not be deprived of property according to the law of general application and that no law may allow such an arbitrary deprivation. Intellectual property is not explicitly mentioned in this section; however, it can be argued that it is accepted under this section especially in situations where our courts accept that intellectual property rights are property rights.

Intellectual property consists of the exclusive rights to patents, copyrights, and trademarks. When an intellectual property is exclusive in nature, the exclusivity given by these private rights is balanced against the public interest. In this article, we will be focusing on trademarks.

A trademark is used as a marketing tool for products and services, it is used to identify and create a distinction between goods and services that have similar characteristics. Trademarks in South Africa are protected by the Trademarks Act 194 of 1993, the common law or both. Registered trademarks are afforded protection under both the Trademarks Act and common law.  When a trader does not register their trademark, protection is limited to the common law only.

Intellectual property comes from intellectual creativity and originality that is afforded legal protection.

The registration of a trademark is dealt with in section 9 of the Trademarks Act. It states that for a trademark to be registered it should be able to distinguish between goods and services of an individual for the purpose that it is registered for or proposed to be registered, from the goods or services of another person either generally or, where the trademark is registered or proposed to be registered subject to 15 limitations, in relation to use within those limitations. A mark is regarded as capable of distinction if at the date of application for registering it is inherently capable of distinguishing.

The effect that a trademark has is that it creates a rebuttable presumption about the validity of the original registration. The exclusive right that comes from this is that the proprietor of the right can prevent other individuals from registering the trademark or infringing the trademark and simultaneously entitling the proprietor to license the use of trademark, transfer the trademark or hypothecate the trademark by way of a deed of security.

Reference list:

Constitution of the Republic of South Africa, 1996.

Law of Intellectual Property in South Africa 2^nd edition.

Trademarks Act 194 of 1993.