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Design infringements occur when one registers a design that is similar to another one in the same class or when a person copies part of or the whole design and represents as their own.
Design infringements can also occur when a person or entity commercially exploits a design without the express written permission of the proprietor or in a manner not agreed upon with the proprietor.
The design registration provides the proprietor the right to exclude others from making, selling, using, distributing or importing articles in the same design class for which the design has been registered where the articles embody the design or similar features.
The Procedure For Action When It Comes To Design Infringements
The plaintiff, thus proprietor, can call for an interdict to prevent any further usage, distribution, marketing, selling, importing or commercial exploitation of the said article.
The proprietor is also entitled to the surrendering of any infringing articles to him and can take steps to get compensation for damages caused by the infringement.
The proprietor can furthermore in lieu of damages get compensation based on a reasonable royalty payable for the articles.
Call For Revocation
It is possible to apply for a revocation of a design if the design registration wasn’t made by the rightful proprietor, when the design is a fraud or copy of a similar design already in use or registered.
One can also apply for the revocation of a design if the specific design wasn’t eligible for registration and still passed it, if the application contained false statements or if the representation of the article registered wasn’t truthful.
Another instance where one can call for revocation of a design is when the article wasn’t made or designed in the way described.
Contact us at Smit & Van Wyk for assistance regarding design infringements and the challenging thereof where relevant.
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