As Albert Einstein said, “We can't solve problems by using the same kind of thinking we used when we created them.” E-commerce has forever changed the way we shop for consumer goods and services. It has never been more vital to implement a holistic strategy to safeguard your business, your brand and your intellectual property rights.

Securing statutory trade mark and domain rights

Before spending thousands of rands on branding and marketing, it is recommended that you conduct a trade mark availability search to ensure that there isn’t an identical or confusingly similar brand already existing in the market. Brand names, logos, devices, slogans and even colours can obtain trade mark protection.

Trade Marks assist when marketing on social media, such as Facebook and Instagram as they enable you to use, for example, a hashtag in combination with a registered trade mark which will aid in attracting customers to your online platform. Another way to use your trade mark to your advantage is to register variations of your trade mark in conjunction with top-level domains.

Trade mark rights ultimately provide the proprietor of the right with legal grounds to prevent someone else from using an identical or confusingly similar mark and most social media platforms are quick to take down sites that are infringing on a person’s registered intellectual property right such as a trade mark.

Copyright protection

Copyright law protects the written material, such as images, recipes, manuals, sculptures, videos and sound recordings. When it comes to protecting your original photographs, it is imperative to mark your material by simply adding a watermark indicating your proprietary rights in a work. This simple addition can assist in mitigating copyright infringements. A practical suggestion to mitigate copying is to upload low resolution images that are less than 720 dpi as this prevents infringers from copying and amending your image without pixelating the image or reducing the quality.

Another way of safeguarding ownership of copyright protected material, is to ensure copyright assignment of all materials created by third parties such as graphic and website designers. It is also considered good practice to include a copyright notice on your website or blog such as “Copyright © 2020 by…” This will caution potential infringers and assert your rights as the copyright owner.

Comprehensive online terms and conditions

Always include a clause in your terms and conditions which protects your intellectual property and provides sufficient indemnification clauses. For an explanation on website terms and conditions, please do not hesitate to contact us /copyright.

Your brand should be viewed as an asset and the registration of that asset should be considered in order to both protect the asset and increase its value. However, the aforesaid is a precautionary step to protect your brand. Cease and desist letters, together with social media take down notices can also be used to enforce your proprietary rights.

Should your rights as an online retailer be contravened or should you require assistance with the establishment of an e-commerce site or protection of your brand or require any clarity on the above, then please do not hesitate to contact our Commercial Department at anolan@kisch-ip.com or sonicaw@kisch-ip.com.

Sonica Wilken

Associate
Attorney
Trade Mark Prosecution Department
Email sonicaw@kisch-ip.com
Tel +27 11 324 3133