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Design Protection For Functional & Aesthetic Designs
Design protection in South Africa is provided through the Designs Act No. 195 of 1993 and the subsequent amendments.
To obtain design protection, one has to file a design registration application. This can be done for aesthetic or functional designs. You can apply in person, as a company or by means of an attorney representing you. The application is filed at CIPRO.
Aesthetic Design
Design protection can be obtained for an aesthetic design based on its pattern, shape, configuration or the ornamentation of the article for characteristics of the article setting it apart from others in the same classification class, and based on the visual appeal.
The aesthetic quality is not at issue. The role of the design is to fulfil an aesthetic purpose.
Functional Design
Unlike the aesthetic design which is based on visual appeal, the functional design is judged by the features necessitated by the function.
The aesthetic appeal is not taken into consideration. It should also be noted that although it is a functional design, design protection is limited only to the features of the article necessitated by the underlying function, and not the function itself.
It is possible to obtain design rights for both aesthetic and functional design features for the same article, but two separate applications must be completed.
The decorative features thus get priority with the aesthetic design, whereas the features needed because of a function can get protection when it comes to a functional design.
There are some 38 classes in which articles are grouped. It is important to register the design rights for the particular article in the right class or classes. Our intellectual property attorneys can assist you in the selection of the most appropriate classes.
Contact us at Smit & Van Wyk Intellectual Property Attorneys regarding the registration of designs for optimal design protection in South Africa and abroad.
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