Registered Designs in South Africa
Type of protection offered by a South African registered design
A South African registered design protects the appearance of an article, unlike a patent which protects the underlying invention on which an article is based. Even though the underlying principle of operation may be the same as a known article, a new appearance may be protectable by way of a South African registered design.
Classes into which South African registered designs are divided and the different parts of the designs register
In South Africa, the designs register is split into two sections. Firstly, an aesthetic design protects the appearance of an article, irrespective of the aesthetic value thereof (such as cell phones covers or automobile designs). The duration of an aesthetic design is 15 years. Secondly, a functional design protects the appearance of an article in as far as its appearance is necessitated by the function that the article is to perform (such as a paving stone or aluminium profiling). The duration of a functional design is 10 years. In addition, designs are grouped into different classes of technology and a design application may be filed in one or more classes, to provide protection against infringing products falling in the same class. It is important to note that the protection is limited to articles falling in the same class for which the design has been registered. The classes into which designs are classified are set out at the end of this page.
Registration of more than one design for an article
In a case where an article has both aesthetic and functional features, we would suggest filing an aesthetic as well as a functional design application for the article. Although these are two separate design applications, we usually charge a reduced rate for the second and each following design application filed simultaneously. Similarly, design applications can be filed in different classes in the register. Please note that it is only possible to cover a single embodiment of your design in a single design application. For example, should you have produced a new range of footwear with four or five variants, South African design law requires you to file a separate design application for each embodiment of the article.
Six month grace period for registration after the design has been disclosed
Unlike a patent for which absolute novelty is required, a design may be registered up to 6 months after the design has been disclosed or released to the public. However, if another party starts to produce an article during the six month period, which article would have infringed the design had the design been registered, it would not in future be possible to take action against the other party. It is therefore advisable to register a design before disclosure.
Process for obtaining a South African registered design
- First and foremost, KEEP THE DESIGN SECRET and do not market it or sell it until a South African registered design has been filed.
- Contact us to discuss the protection of your design.
- Should you wish to proceed with registration of a design, we shall, upon receipt of a deposit, prepare the design application including drawings or photos showing the design.
- The design application will, upon completion, be forwarded to you for approval.
- When you are satisfied that the design application is complete, we shall file it at the South African Design office in Pretoria.
- Only after we confirm that the design application has in fact been filed may you disclose your design. (Note, however, the six month grace period for filing a design application as described above)
It usually takes about eight months from the date of filing the application until notification of registration is received from the South African Designs Office. If foreign registered designs are to be applied for, we should be notified thereof at the outset, but foreign design applications may be filed in a number of countries within six months after the filing of a South African registered design. Such a design application may then claim the priority date of the South African design.
Enforceability of a South African registered design
An enforceable right is only obtained once a design has been registered. As set out above, a design is only registered by the South African Designs Office a few months after filing of the design application. You do not have an enforceable right until such time as you have received notification of registration of the design from the South African Designs Office. However, should you become aware of infringers copying your design, it is possible to apply to have the registration process expedited following which legal action may be taken.