The article or product must LOOK NEW to qualify for valid design protection. You are protecting the difference in appearance over what has already been made available to the public anywhere in the world. This protection may be a matter of degree (i.e. some new features on a known product) or you may have something that is altogether new in its appearance.
A design application consists mainly of drawings (or photographs) that illustrate the visual features of an article. The illustrations are accompanied by a “definitive statement” setting out the features that are protected. This is usually a general statement that emphasises the novel features as illustrated and excludes features in the illustrations that are not part of the design.
Each design application must be filed in a particular class. The class must be chosen from a prescribed list setting out different classes of goods. This selection depends on the type of article to which the design is applied. Where appropriate, a design needs to be filed in more than one class.
By its nature, design protection is (generally speaking) more limited than patent protection. It is often appropriate to file for both patent and design protection. The requirements for a valid design are less strict than the requirements for a valid patent. This may make it easier to enforce a design in some cases. This also means that design protection is often available when a valid patent is not.
An article may be protected by an aesthetic design or a functional design or both. Subject to paying renewal fees, an aesthetic design lasts for 15 years and a functional design for only 10 years.
An aesthetic design protects the appearance of an article; that is, those features which appeal to and are judged solely by the eye. It does not protect those features which are dictated solely by the function which the article is intended to perform.
A functional design protects the appearance of features which are necessitated by the function which an article is to perform. A functional design may also be used to protect an integrated circuit topography, a mask work or a series of mask works. A spare part for a machine, vehicle or equipment cannot be protected by a functional design.
A number of articles of the same general character ordinarily on sale or intended for use together can be protected collectively as a “set of articles”.
In South Africa, the Designs Act allows you to disclose your design up to a maximum of 6 months before filing a design application. In such a case, the “release date” must be mentioned on the application. However, there may be problems with a release date if you want to file design applications in foreign countries. It is therefore preferable not to disclose the design before filing for registration.
We can attend to the filing of design applications locally as well as in all foreign countries which allow for this kind of protection. Foreign designs should usually be filed within 6 month of the local design application from which they may claim priority rights.
As with any Intellectual Property, take early advice on your particular circumstances from someone who specializes in this area of the law.
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