The short answer – IP is a necessity.

But to whom?

In a hypothetical world an individual X starts a brand of products – say smartphones. The brand is called X-foane III.

The brand is so good that it obviously poses a problem to the competition. It is advanced, reliable, flashy, all bells and whistles.

The competition is worried.

Individual X invested heavily in the X-foane III, naturally. Manufacturing, marketing, developers, engineers, admin.

After some time individual X becomes aware of a brand of smartphones calling itself Xfoane-I.

The name is so similar to X-foane III that even an avid fan of the X-foane III brand would be confused and could realistically end up buying the Xfoane-I.

Individual X sends letters to the dealers of this Xfoane-I asking them to stop copying the X-foane III brand. There is no response to any of the letters.

Meanwhile both products are selling like hot cakes, the X-foane III being the better product but other people buying the Xfoane-I because of the presumed association of the brands by consumers.

Individual X starts thinking of suing the dealers because they are luring away customers.

However as individual X is about to sue, individual X receives a letter as follows:

RE: NOTICE TO CEASE AND DESIST FROM INFRINGEMENT OF TRADEMARK NO. 2023/12345

Dear Individual X

It has come to our attention that you are selling products by the name of “X-foane III”.

This is in violation of our trademark rights to the term “Xfoane”.

We attach proof of registration of the trademark “Xfoane” in our name.

The name that you use for branding your products is “X-foane III” which contains the string “X-foane”, the latter which is confusingly similar to our registered trademark “Xfoane”. This amounts infringement of our registered trademark rights.

We hereby request you to cease marketing and disposing your products in/by any name incoporating our trademark “Xfoane” or similar.

Non-compliance with our request or lack of a response to us within the 7 (seven) days of the date of delivery of this letter to you will lead to us filing an interdict to stop all your operations involving our trademark “Xfoane” or similar.

Your Insincerely,

Individuals Y (Pty) Ltd

If the word Xfoane has indeed been trademarked by Individuals (Pty) Ltd then individual X cannot sell the brand of their own creation without infringing. They cannot advertise, they cannot package.

It will take a lot of negotiation or a court case or two for individual X to pave their way forward if they intend to continue using the name X-foane III. This will probably take a lot of time, business uncertainty and money.

Individual X could end up rebranding.

The lesson from this hypothetical but all-too-real situation can be summarised as follows:

Are you a start-up? Do you have a good idea of a brand sign such as a name or logo or slogan? Conduct a search on whether that brand sign is registered, then get it registered.

It is a small price to pay for the confidence, assurance and success that you will stand to enjoy as your business grows.

It is a necessity.

Brian Albert Dube is a registered Patent Lawyer and Electronic Engineer specialising in Electrical, Electronic, Software and Mechanical inventions. Contact him on +27 (0)76 673 4288 and at admin@dubeiplaw.co.za.

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