Smit & Van Wyk Patent, Trademark & Registered Designs

Design Rights in South Africa

Registered Designs & Patent Attorneys

Design rights refer to the intellectual property rights associated with the shape, patterns, and configuration of an item, combination of texture, shape and patterns as well as ornamentation associated with an item. Such rights become enforceable by law upon registration. It is important to keep certified copies of the documents giving your design rights to an item, as well as any drawings or photos which you have submitted for the registration of the rights on the item.

Design rights in South Africa are governed by the regulations of the Design Rights Act No. 195 of 1993 which protects the appearance of an item. There are two types in existence in South Africa: Functional Design and Aesthetic Design.

A functional design protects the function related qualities of an item as pertaining to appearance whereas the aesthetic right protects the ornamentation qualities of the item’s appearance. It is possible to also gain protection on a two dimensional design, which in such a case, may also be protected under the copyright laws of the country. One can apply for both types; provided the requirements are met and separate applications are completed.

Since design rights are often overlapped by copyright, trademark and patent rights, it is possible to register any of these intellectual property rights on an item in addition to the design protection. Examples of designs are that of handbags, bottles, jewellery, chairs, cars and more. The owner of such rights is known as the proprietor.

If a person is commissioned to design an item and then paid in full for that item, the ownership on the design can go to the one who has commissioned and paid for such. One of the requirements for design protection is that of originality as applying to an aesthetic design in addition to novelty. When it comes to a functional design the item must not be commonplace and it must be new. An example of a functional design can be a part of a circuit board.

Posted on 6 September 2011
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Design Rights: Functionality and Scope of Protection

Read Wessel van Wyk and Kimberley Conroy’s contributions to the book published by Kluwer Law International and edited by Christopher V. Carani.

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