Design rights refer to the intellectual property rights associated with registered designs for the shape, pattern, and configuration of an item, as well as any combination of texture, shape, and pattern, or ornamentation applied to an item. These rights become legally enforceable upon registration. It is important to keep certified copies of the documents granting design rights to an item, along with any drawings or photographs submitted for the registration of those rights.

Types of Protection

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.

Combining Design Rights with Other Protections

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.

Ownership and Requirements for Design Protection

If a person is commissioned to design an item and is paid in full for that work, ownership of the design may pass to the person or entity that commissioned and paid for it. For a design to qualify for protection under South African law, it must meet certain requirements. In the case of an aesthetic design, it must be both original and new, meaning it should not have been made available to the public anywhere in the world before the date of application. For a functional design, the item must be new and not commonplace, with features dictated by the way the product works rather than its appearance.

Additional requirements include that the design must be applied to an article by an industrial process, and it must be clearly defined through drawings, photographs, or representations submitted during registration. An example of a functional design could be a component of a circuit board, where the design serves a practical purpose rather than a decorative one.