New companies in the brewery and winery industry need to understand the importance of the laws and regulations, such as copyright and trademarks, associated with the products and services that breweries may want to offer, says Spoor & Fisher partner Eben van Wyk.
He advises that a trademark attorney should be consulted during the planning stages of establishing a new brewery.
“Such an attorney will conduct a trademark clearance search through the Companies and Intellectual Property Commission (CIPC) to ensure that the trademark is distinctive and not similar to another company’s trademark or logo,” he says.
Should a scenario arise where the trademark is similar to that of another company, the CIPC may refuse an application for registration of the trademark, which could lead to the business having to change its brand.
“One needs to understand the importance of a trademark, as it distinguishes one product, or business, from another.”
The new brewery should also ensure that the rights to that particular trademark have been secured and that its trademark will not infringe on the rights of others, he adds.
“Something else that new breweries must consider, specifically with regard to the logo, is to ensure that the brewery owns the copyright in that logo.
“If the logo was designed by a third party, it’s important to transfer ownership of the copyright – as paying the designer for the logo does not automatically imply ownership of the copyright,” he explains.
Van Wyk says, ideally, when a business launches a new product and the logo is designed by a third party, it secures copyright ownership, in addition to the trademark ownership. It is always advisable that a prospective brewery owns the copyright in its logo, he adds.
A brewery can also obtain ownership of copyright of the packaging in which it sells its product, in addition to the logo and the trademark rights in the name of the brewery and its product names.
New breweries can maintain confidentiality, trade secrets and ownership of recipes by having employees and contractors sign non-disclosure agreements. Such agreements compel them not to reveal trade secrets to competitors or anyone who may benefit from knowing and possibly using the trade secrets.
Meanwhile, new breweries should be informed about the regulations relating to product marketing, advertising and the potential risks in the brewery and winery industry. Such regulations may include product packaging and advertising laws that pertain to that particular industry.
Legal experts should keep business owners updated on regulatory changes that may occur to ensure a more proactive approach, he concludes.