A South African Design may be protected in terms of the The South African Designs Act No. 195 of 1993 which gives the owner of a registered design control over their design for a limited period in South Africa. A South African registered design does not protect the underlying concept of a product but rather the appearance embodying the design. The owner of a registered design may exclude others from copying, making, importing or using any article that is included in the class in which the design is registered. The owner has complete control over the design which enables them to enjoy the profits accruing as a result of the design’s registration.
A South African design is an intangible asset that can be bought, sold, or licensed to a third party. A licence is an agreement between the owner of a registered design and a third party in which the owner (licensor) provides the licensee with the right to use part of their design for a specific time, and usually in a restricted geographic area. When managed correctly, it can provide registered design owners with additional revenue streams, as well as a cost-effective way of extending into new service areas and markets.
All manufactured products are the result of a design process. Industrial design is the professional practice of developing the concepts for products such as furniture, vehicles, smartphones, appliances, shoes, jewellery and even toys. Industrial designers are responsible for the manufacture of products that will be produced in great numbers, thus having the responsibility to consider the environmental impact of their creations. Industrial design can also be described as a strategic problem-solving process that leads to a better quality of life through products, systems and services. Designers use a range of tools to create their products including sketches, computer graphics, computer aided designs and model-making. Under current international intellectual property laws, industrial designs may be protected through copyright, trade dress, or design patents (Design patents are referred to as Registered Designs in South Africa).
Registered Designs in South Africa
Unlike a patent which protects the underlying invention on which a product is based ob, a South African registered design protects the appearance of that product. In South Africa, a design can either be registered as an aesthetic which protects the appearance, or functional which protects the appearance of an article in as far as its appearance is necessitated by the function that the article is to perform.
The core design principle that defines a design’s visual qualities and includes factors such as balance, color, movement, pattern, scale, shape and visual weight. Aesthetic design rights are applied to these factors or any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof. Aesthetic designs are protected for 15 years once they are registered in South Africa.
Functional design possess both an outcome and a process. Functional design rights are applied to any article pattern, shape, configuration thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied, is to include an integrated circuit topography, a mask work and a series of masks works. A functional design may not be filed as a “spare part” of a machine, vehicle or equipment. “Spare parts” include objects that are expected to be replaced during the life of the parent as a result of ordinary wear and tear. Functional designs are protected for 10 years once they are registered in South Africa. For a design to be registered in South Africa it must be novel (new), and not made available to the public anywhere in the world, although a design application can still be filed within 6 months following disclosure of the design to the public.
South African Registered Designs
South African registered designs may be filed for the appearance of an article, provided that the particular appearance is new when compared to other articles of a similar nature. In South Africa, designs are protected in terms of the South African Designs Act No. 195 of 1993 which makes provision for a monopoly to be granted to the owner of South African registered designs for a certain duration.