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Intellectual property (IP) is often a company's most valuable asset — and the most poorly protected. Software, brand, customer data, processes, and creative work are all forms of IP. The CEO's job is to ensure the business owns what it creates, protects what it owns, and does not inadvertently infringe what others own.
Leo is not an IP attorney. For trademark registration, patent applications, and complex IP disputes, engage a registered IP practitioner or patent attorney.
Automatic protection for original creative works — no registration required in South Africa.
Covered: Software code, literary works (reports, documentation, website copy), artistic works (logos, designs), films, sound recordings, databases.
Duration: Lifetime of the author + 50 years (literary, artistic); 50 years from creation (films, sound recordings).
Key issue for businesses: Who owns copyright?
Action: Ensure every freelancer, contractor, and agency has signed an IP assignment clause before work begins.
Protection for brand identifiers — names, logos, slogans.
How it works: Register with the Companies and Intellectual Property Commission (CIPC) Trade Marks Office.
Classes matter: Registration in Class 42 (software services) does not protect the same name used in Class 35 (business services). Register in all relevant classes.
Common-law rights: Unregistered marks may have protection through "passing off" if the mark has a reputation, but this is harder to enforce. Register early.
Before using a new brand name:
Protection for inventions and technical innovations.
Requires registration — patents do not arise automatically.
Key issue for software: Pure software is generally not patentable in South Africa (it must produce a technical effect — a physical or technical process). Business methods alone are not patentable.
Disclosure kills patents: Once an invention is publicly disclosed (conference, publication, product launch), the novelty requirement is destroyed and it cannot be patented. File before disclosing.
Confidential business information with commercial value — formulae, processes, client lists, pricing strategies, source code.
No registration required — protected by contract (NDAs, employment agreements) and common law.
Protection requirements:
South African position: The unlawful competition provisions of common law protect trade secrets. The Cybercrimes Act 19 of 2020 provides criminal sanctions for unauthorised access to systems and data.
The most common IP mistake in growing businesses: paying a freelancer to build your website, design your logo, or write your software — and not owning the result.
Without a written IP assignment: The freelancer owns the copyright. You have a licence to use it (implied by payment), but you cannot sublicence it, modify it freely, or stop the freelancer from selling it to a competitor.
IP assignment clause (include in every contractor agreement):
"All work product, including all intellectual property rights therein, created by [Contractor] in connection with this agreement shall be the sole and exclusive property of [Company] from the moment of creation. [Contractor] hereby assigns all such rights to [Company] and agrees to execute any further documents necessary to give effect to this assignment."
This clause must be signed before work commences — not after. A retrospective assignment requires the contractor's cooperation and may face challenges.
Investors and acquirers will scrutinise IP ownership:
Open-source licence risk: Using GPL-licensed code in commercial software may require you to open-source your own code. Always check the licence of any open-source component before incorporating it.
Domain names and social media handles are not IP in the traditional sense but are operationally critical:
.co.za, .com, .africa)Brand squatting (registering a brand's domain before it does) is actionable under the Electronic Communications and Transactions Act 25 of 2002 — but litigation is expensive. Prevention is cheaper.