South Africa Country Commercial Guide
Learn about the market conditions, opportunities, regulations, and business conditions in South Africa, prepared by at U.S. Embassies worldwide by Commerce Department, State Department and other U.S. agencies’ professionals.
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Protecting Intellectual Property
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South Africa provides protection for all types of intellectual property, including patents, trademarks, geographical indications, copyrights, designs, and trade secrets via legislation and common law.

Notably, there is a long-standing legislative effort to amend and modernize the country’s Copyright Act and the Performers’ Protection Act, and stakeholder perspectives vary on whether the amendments would be improvements.

The Companies and Intellectual Property Commission (CIPC) is the entity responsible for the registration of intellectual property rights. South Africa is a not a member of the African Regional Intellectual Property Organization (ARIPO) or the African Intellectual Property Organization (OAPI), and all intellectual property registration is handled at the national level. 

Patents 

The CIPC registers patentable inventions pursuant to the Patents Act No. 57 of 1978 and designs under Designs Act No. 195 of 1993. Patentable inventions must involve an inventive step and that can be used or applied in trade and industry or agriculture. It is important to note that CIPC does not conduct substantive patent examination. 
The Patent Act does not expressly define the term “invention” but instead describes what a patentable invention excludes. Under the Act patentable inventions may exclude, for example, discoveries, computer programs, mathematical methods and other mental processes, business methods, or games. 

An application for an invention may be made by the inventor or by any other person acquiring from him the right to apply or by both such inventor and such other person. CIPC was the first patent office in the world to acknowledge an AI system (Device for the Autonomous Bootstrapping of Unified Sentience (DABUS)) as an inventor. The term of protection for a patent registered in South Africa is 20 years from the date of filing of the application. Patent owners are required to pay renewal fees to keep the patent in force. 
To find out more about how to register a patent, please see South Africa’s Companies and Intellectual Property Commission’s website.

Trademarks

Registration and protection of trademarks is governed by the Trade Marks Act 194 of 1993, as amended by the Intellectual Property Laws Amendment Act 38 of 1997 and by the Companies Act 71 of 2008. The Companies and Intellectual Property Commission is responsible for trademark registration. South Africa allows registration of trademarks, service marks, certification trademarks and collective trademarks. Registration of a trademark is for a period of 10 years, and the registration can be renewed. Only the owner’s bona fide intent to use the mark in South Africa is required to file a trademark application, but if the mark is not used in commerce within a period of five years from the date of registration, the registration may be vulnerable to expungement. Common law trademarks are also recognized; however, only the owner of a registered trademark has a prima facie statutory right to the exclusive use of a given trademark. Geographic indicators cannot be registered as trademarks unless the mark is a collective mark or the geographical location has no association with the goods/services covered by the trademark. The Trade Marks Act protects well-known/famous trademarks that are not in use or registered in South Africa, provided that the proprietor of the mark is a national of or domiciled in a Paris Convention member country.

Copyrights

In South Africa, copyrightable works are protected automatically upon creation, and the general duration is the lifetime of the author plus 50 years. The primary laws covering copyrights and related rights are the Copyright Act, 1978 and the Performers’ Protection Act, 1967,

Enforcement 

Intellectual property enforcement is handled by a number of agencies, including the South African Police Services (SAPS), South African Revenue Services (SARS), and the Directorate for Priority Crime Investigation (DPCI). Relevant legislation includes the Counterfeit Goods Act, 1997 and the Copyright Act, 1978. South Africa is a member of the Paris Convention, Patent Cooperation Treaty, Berne Convention, Budapest Treaty, TRIPS Agreement, and UPOV 1978 Convention. 

In any foreign market companies should consider several general principles for effective protection and enforcement of their intellectual property. For background on these principles please link to the following article on Protecting Intellectual Property and Stopfakes.gov, or contact ITA’s Office of Intellectual Property Rights Director, Stevan Mitchell at Stevan.Mitchell@trade.gov 
 

The U.S. Patent and Trademark Office have a regional IP Attaché for Sub-Saharan Africa who can provide advice and support to U.S. companies facing IP representation issues in the region.

Katherine M. Hiner
Regional IP Attaché
U.S. Consulate General, Johannesburg, South Africa
Telephone: +27 (082 826-8431)
E-mail: katherine.hiner@trade.gov 

For additional information on the protection and enforcement of intellectual property rights, visit the U.S.  Investment Climate Statement website.

Corruption

Please see the section on corruption in the U.S. Department of State’s Investment Climate Statement for South Africa.
New-to-market U.S. companies should insist on extensive due diligence to minimize risks of new partnerships and transactions. 

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