Businesses often invest significant time and resources into developing products that stand out in the market. The visual appearance of a product can influence how customers recognize it and how competitors respond to it. Because of this, protecting the look of a product is an important part of intellectual property strategy.

Two common forms of protection for product appearance are registered designs and 3D trade marks, sometimes referred to as trade mark shapes. While both forms of protection can apply to the appearance of a product, they serve different purposes and follow different legal requirements. Understanding the difference between these protections can help businesses decide how to protect their product designs in both the short term and the long term.

What Are Registered Designs?

Registered designs, often called industrial designs, protect the visual appearance of a product. This includes features such as its shape, configuration, pattern, ornamentation, or colour. The focus of registered design protection is the aesthetic appearance of the product rather than its technical function. If a design creates a new and recognisable visual impression, it may qualify for protection.

What Registered Designs Protect

Registered designs typically protect visual elements such as:

• The shape or form of a product
• Surface patterns or decoration
• Ornamental details
• Colour arrangements
• Overall visual configuration

The design must be new, meaning it cannot have been publicly disclosed before the application is filed. It must also have its own character, which means the overall visual impression should be different from previously known designs.

Registered Designs: Duration of Protection

In many jurisdictions, registered designs last up to 15 years, renewable in blocks of five years. In South Africa, design protection can last:

• 15 years for aesthetic designs, which are based on appearance
• 10 years for functional designs, which relate to how a product works

Once the protection period ends, the design becomes available for public use.

What Are 3D Trade Marks?

A 3D trade mark, also known as a shape mark, protects the shape of a product or its packaging when that shape acts as a brand identifier. A three dimensional trade mark represents an object in three dimensions, including length, width, and height. The protection applies when consumers associate the shape with a specific brand or source of goods. One well known example is the Coca-Cola bottle shape, which has become strongly linked to the Coca-Cola brand.

What 3D Trade Marks Protect

3D trade marks protect shapes that function as branding elements. These may include:

• Product shapes that customers associate with a brand
• Distinctive packaging shapes
• Containers or bottle designs
• Product configurations that identify the source of goods

The key requirement is distinctiveness. The shape must signal to consumers where the product comes from.

Distinctiveness Requirement

Unlike registered designs, a shape trade mark must show that it acts as a brand identifier. This may require evidence that consumers recognize the shape as belonging to a particular company. Shapes that are necessary for the function of a product cannot be protected as trade marks. The law prevents companies from monopolizing shapes that competitors must use for practical reasons.

3D Trade Marks: Duration of Protection

One major advantage of trade mark protection is its potential longevity. A 3D trade mark can last indefinitely as long as:

• The trade mark is renewed, every ten years
• The mark continues to be used in commerce

Because of this, trade marks can protect product shapes for a much longer period than design rights.

Key Differences Between Trade Mark Shapes and Design Patents

Although both forms of protection relate to product appearance, their purposes are different.

Focus of Protection

The primary difference lies in what each system protects.

• Registered designs protect the appearance and aesthetic value of a product.
• Trade mark shapes protect a brand identifier that signals the origin of goods.

A design right prevents competitors from copying the look of a product, while a trade mark protects the shape as part of brand identity.

Functionality

Function plays an important role in determining which protection is available. Trade marks cannot protect shapes that are purely functional. If a shape is necessary for the product to work, it cannot become a trade mark. Registered designs can protect the ornamental aspects of a product's appearance, even if the product itself has a function.

Duration

Another important difference is how long protection lasts.

• Registered designs typically last up to 15 years.
• Trade marks can last indefinitely, provided they are renewed and used.

Infringement Test

The test for infringement also differs.

• Design infringement focuses on visual similarity between designs.
• Trade mark infringement focuses on consumer confusion about the source of goods.

Can a Product Have Both Protections?

In some cases, businesses may use both forms of protection as part of a broader intellectual property strategy. A product design may first be protected through a registered design, which prevents copying of its appearance soon after the product is launched.

As the product becomes widely recognized, the same shape may later qualify for 3D trade mark protection if customers begin to associate the design with the brand.

A Practical Strategy for Protecting Product Designs

Many businesses follow a phased approach when protecting product designs. The typical strategy works as follows: First, a registered design is filed to protect the appearance of the product quickly and at relatively low cost. This prevents competitors from copying the design during the early years of the product's release.

Over time, if the product becomes widely recognized, the company may apply for a 3D trade mark to protect the shape as part of its brand identity. This approach provides early protection for product aesthetics, and long term protection for brand recognition. Using both tools at different stages can strengthen a company's intellectual property position.

Protection in South Africa

South Africa offers protection for both registered designs and trade mark shapes.

Registered designs provide:

• 15 years of protection for aesthetic designs
• 10 years of protection for functional designs

3D trade marks can protect unique product shapes that identify the source of goods. These trade marks can be renewed every 10 years, perpetually.

Businesses operating in South Africa often use a combination of these protections to secure both the appearance of their products and the brand identity associated with them.

The appearance of a product can be a powerful commercial asset. Whether through registered designs or 3D trade marks, protecting that appearance helps businesses prevent imitation and maintain their brand identity.

Registered designs provide fast protection for the aesthetic aspects of a product, while trade mark shapes offer long term protection when the design becomes linked to a brand.

Understanding the difference between these protections allows businesses to make informed decisions about how to protect their products and maintain their competitive position in the market.