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Protect ideas - Starting a business
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It is exciting starting a new business venture. We are
often approached by clients who want to start a new
business, as most new business opportunities are likely
to cover the use or registration of intellectual
property. Examples include the use or registration of a
business or product name, use of marketing or
instructing materials which may be subject to copyright
protection, the use of confidential information or the
exploitation of a patent.
Although we are not business consultants, to assist our
clients, we list below some aspects we regard important
when considering starting a new business. In our
experience, entrepreneurs often adopt the attitude that
they will deal with any legal issue, if and when it
arises. Such approach may lead to unexpected litigation
which can be costly, unpleasant and risky. To minimise
risks, we recommend that the legal aspects and
requirements for protecting intellectual property be
considered before or when starting a new business.
1. Planning
It is often said that if you fail to plan, you plan to
fail. Starting a new venture requires a good business
plan including a financial budget, a marketing plan,
operational plan, customer care plan and long and short
term goals.
2. Selecting a name
Whether you are planning to sell products or render
services, it would be necessary to select a name for
your business to enable consumers to identify and
distinguish your products or services from other
businesses. It may also be necessary to select different
names for your different products or services.
It is best to select a name that is distinctive and
unique so that consumers will not confuse your business
with other businesses. If you select a name which is
descriptive of your products or services, or very common
in trade, it would be very difficult to prevent other
traders from using the same name.
To determine whether your use of your name is likely to
infringe on the rights of another, you could instruct us
to conduct relevant searches and/or investigations. In
this regard, we recommend that you consider instructing
us to conduct searches on the Trade Marks Register,
Companies and Close Corporations Registers and .CO.ZA
Domain Name Register. None of these registers are
currently cross-referenced.
We further recommend that we be instructed to register
your business name, domain names, slogans, logos and
product names as trade mark to obtain proper protection.
As the cost of a trade mark registration is low compared
to possible costs relating to trade mark litigation
proceedings, a trade mark registration is often regarded
as a form of cheep insurance to protect the name and
reputation of your business.
3. Forming a legal vehicle
When starting a new business, the entrepreneur must
decide which form of enterprise will be used as vehicle
for the business. Different rules and laws are
applicable to different types of business entities.
Different forms of enterprise include the following: |
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4. Concluding contracts
It may be necessary to enter into different agreements
when starting a new business. Depending on the size and
nature of your business, it may, for instance, be
necessary to loan money and/or lease or buy premises,
equipment or products. You may further need to set up
arrangements with suppliers, distributors,
manufacturers, importers, exporters or consultants. If
you are employing staff, on a temporary or permanent
basis, it is also important to consider local labour
laws and have clear arrangements regarding working
hours, responsibilities, payment and leave.
It is not prescribed by law to enter into written
agreements in all the circumstances listed, but it is
always recommended to do so to avoid uncertainty and
disputes. Oral agreements are sometimes very difficult
to enforce.
5. Starting a website
With the increase of e-commerce and electronic
communication, depending on the nature of your business,
it is likely that you may start a website at some point.
The name of the website is important as it can assist
consumers to find you on the internet. Domain names are
registered on a; first come, first served basis. To avoid cybersquatting or
disputes, and for defensive reasons, we recommend that
clients register their trade marks and business names as
.CO.ZA domain names. It is also necessary to consider
and add proper legal notices and/or Terms and Conditions
agreement to your website.
Need further advice or information?
You are welcome to contact us, if we can assist with
conducting availability searches for names, forming
legal entities, registering trade marks and domain
names, or drafting contracts. |
  
Tel no: +27 (0) 12 664 8960
Fax
no: + 27 (0) 86 633 2977 or +27 (0) 12 644 2515
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