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For an article to meet design eligibility requirements it may not form part of the state of the art before the application or release period.
Other requirements of design eligibility include that the article must have distinct individual characteristics and that the design must applicable to the visual appearance or as related to the function.
It should be noted that the function itself cannot qualify for design eligibility since such will be covered by patent law. The drawings and photographs of the design are also protected under copyright law.
If information has been disclosed about the article before application for design registration, it is imperative that one file an application within six months of the specific release or disclosure.
If an article of industrial nature is the same as another one in the same class, the article may not meet the requirements for functional designs, but may, based on its appearance, be registered for aesthetic changes. One has to conduct a novelty search to determine that the article is new before filing the application.
The application must be accompanied by drawings or pictures of the article without any side notes. It is important to note that the design laws of countries differ.
One should thus get in expert advice from an intellectual property attorney familiar with the designs laws of the particular country prior to filing an application in the specific country.
If an article meets the design eligibility requirements and registration fees are paid, a period of 15 yeas protection for the aesthetic design or ten years for the functional design will apply.
Lapsed registrations can be restored if the lapse was not by intention or because of unnecessary delay in the application for restoration.
Contact us to help you determine the design eligibility of your article and to file application for design rights in South Africa or abroad.
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