Design
Law
South Africa is a member of the Paris Convention and design applications can be filed up to six months after the earliest priority date. An application for a registered design can also be filed within six months of disclosing the design to the public.
Registered designs (design patents) can be filed either as aesthetic designs or functional designs.
Aesthetic designs are granted exclusively for the aesthetic appearance of an article, whereas functional designs are granted for features that are, at least to a certain extent, dictated by their function. In the case of designs embodying aesthetic and functional features, separate aesthetic and functional designs can be registered for the same article.
What is a Design?
A design is defined broadly as the features of shape, configuration, pattern, ornamentation, or composition of lines or colors applied to any article. Essentially, it is the visual appearance of the product.
Requirements for Registration
To be eligible for registration, a design must be new and original. It should also not have been made available to the public more than 6 months before the filing date of the application.
Duration of Protection
An aesthetic design lasts 15 years, and a functional design 10 years, from the date of application, subject to the payment of annual renewal fees.
Novelty and Originality
The design must be novel and not identical to any design that has been made available to the public anywhere in the world before the filing date of the application.
Application Process
To obtain protection, an application must be filed with the Companies and Intellectual Property Commission (CIPC) in South Africa. The application should include representations (drawings or photographs) of the design and other required information.
Scope of Protection
The protection granted by a registered design is limited to the specific design as represented in the application. It does not protect the underlying idea or concept but rather the specific visual appearance.
Enforcement
If someone uses, without authorisation, a design that is registered in South Africa, the owner of the registered design may take legal action to enforce their rights, which could include seeking damages or an injunction to prevent further unauthorized use.
Registering a design provides the owner with an exclusive right to use the design and prevents others from making, importing, selling, or using the design without permission during the period of protection. It's an essential tool for businesses looking to protect the visual aspects of their products in the South African market.