Design protection in South Africa is awarded based on the appearance of an article, not the underlying invention. It is generally cheaper than patent protection and is often used in combination with trademarks, patents, and copyright to provide maximum protection against infringement by other parties.
Even if the underlying function of an item is the same as an existing one, design protection can still be granted for its appearance. It is also possible to obtain protection for the functional design of an item, though applications for aesthetic and functional designs must be filed separately.
Functional & Aesthetic designs
Functional designs relate to the way a product works, its structure, or the way it performs a particular function. Protection for functional designs focuses on the utility of the item rather than its appearance. In South Africa, design protection can be granted for functional innovations, even if the item looks similar to existing products. Examples of functional designs include a new type of ergonomic handle that improves grip on a tool or a mechanism that makes a device operate more efficiently. It is important to note that a separate application must be filed for functional designs; it cannot be combined with aesthetic design protection.
Aesthetic designs, on the other hand, focus solely on the visual appearance of a product. This includes aspects such as shape, pattern, color, or overall look. Protection for aesthetic designs prevents others from copying the appearance of a product, even if the underlying function remains the same. Examples include a uniquely shaped vase, a patterned textile, or the design of a stylish chair. Like functional designs, aesthetic designs require a separate application if you want protection for both appearance and functionality.
Both functional and aesthetic design protection can be used in combination with other forms of intellectual property, such as patents, trademarks, and copyright, to provide comprehensive protection for a product. While aesthetic designs are more common for consumer products, functional designs are often applied to tools, machinery, or items with technical innovation. Filing separate applications for each ensures that your product is fully protected on all fronts.
Multiple Classes and Variants
Design protection can be registered in more than one class. However, a single application cannot cover multiple variants of the same design. Separate applications must be submitted for each variant. For example, if you have three versions of the same item, you will need to file three separate applications to secure design protection for each.
Registration and Enforcement
Design protection becomes enforceable only once the design is registered with the Companies and Intellectual Property Commission (CIPC). Registration may take several months to complete. Unlike patents, absolute novelty is not required for design protection applications.
South Africa provides a six-month grace period in which you can file for design protection. If your design has already been released, you must register it within six months from the release date to ensure valid protection. Nevertheless, it is recommended to avoid releasing the design publicly before filing the application.
View the procedures for filing under our designs section, and contact us for guidance and assistance in completing your application for design protection.
