Design rights can be registered for the appearance of an article including its shape, pattern, design, colour or any characteristic that visually sets it apart from other articles in the same class. The design rights can belong to an individual or a company. For an article to be eligible for design rights it must meet the criteria of novelty and individual character. No information may be disclosed about the article and the article may not be released before the filing date. If however, it happens in South Africa, a person has a six months grace period from date of release to filing the application. This is not, however, recommended as the best path. It is better to keep all information about the design secret until after confirmation of filing has been received. Design rights can be obtained for the whole article or for a particular part of it. It is possible to obtain the rights for a part that will be used in a more complex article as well. It should be noted that for each variation of the article, that one has to complete a separate application. It is possible to file an application for the same article in multiple classes.
The article is only protected within the same class as filed. If there is a similar design in another class, and the article has not been registered in that particular class, one will not have the right to legal action for infringement damages. As such it is best to get expert guidance from trademark and design attorneys as available from Smit & Van Wyk to help you determine in which classes to register the design for optimal protection against possible infringements. Contact us at Smit & Van Wyk for professional assistance regarding the application for design rights, agreement setups, infringement actions and general guidance regarding intellectual property rights.