following information should be considered as a brief and
simplified outline regarding design protection which is
merely supplied for the convenience of our clients or potential
clients. This information outlines general principles of
design protection. Should more exact information be required,
please select the relevant country from the drop-down list
at the top left-hand of this page.
Whereas a patent confers generally wide protection for an
invention, the protection afforded by a registered design
is limited to the specific appearance of the article so
registered. This protection does not extend to the underlying
principle or the functional purpose of the article.
registration is particularly suitable for articles which
are not new in their underlying concept, but which have
been re-designed to give them a more striking or pleasing
appearance or to make them more fit for the function they
perform. Many products of industrial and other designers
which, by their nature, may be unsuitable for patent protection
can be effectively protected by design registration.
a patent is primarily intended to cover the conceptual features
of an invention underlying potentially a range of embodiments,
a design registration covers the form and outer appearance
of an article. In certain cases, it is advisable to have
parallel design and patent protection for an article. Barring
these differences between patents and designs, many similarities
do exist concerning the application and rights afforded
to the proprietor in both cases.
2. Validity requirements in general
design laws are not universal, some discrepancies exist
between the validity requirements for designs in the different
general, to qualify for valid design protection, a design
must be new and original and generally of an utilitarian
nature, keeping in mind that valid designs are dependant
on their visual appearances as judged solely by the eye.
design is considered new if it does not significantly differ
from known designs or combinations of known design features,
i.e. the design differs from the state of the art. The state
of the art comprises all matter available to the public,
including prior design applications which have an earlier
priority date. Thus, even if a design is new in a country
in which protection is sought but is known elsewhere in
the world, it will not be possible to obtain protection
in that country. In view of the above requirement for a
design to be new, it follows that a design must be kept
absolutely secret until it has been included in a design
application, otherwise the design will not be capable of
connection with the above, we have to rely very largely
on your information. However, the establishment of the existence
of earlier design registrations and other aspects should
be investigated by an experienced member of our staff. Although
a good search may sometimes be expensive, it may save a
person from wasting money eventually.
least initially, we do not normally recommend that a search
be conducted to determine whether or not a design is new
or original. The reason herefor is that the costs of a search
may outweigh the cost of filing a design application in
a single country, especially one as relatively inexpensive
to file in such as South Africa.
certain countries (such as South Africa) do not conduct
an examination on the subject matter of a design application
and will register a design as long as all the necessary
paperwork has been submitted (however, the validity of such
design can be attacked at any time by others).
However, if design protection in several foreign countries
is contemplated, it may be prudent to instruct us to conduct
an international design search prior to carrying out a programme
of design applications involving large expenses. This precaution
is also recommended before investing heavily in somebody
else's design, before embarking upon expensive litigation
against an alleged infringer, or before commercializing
a design that may not be new or original.
Safeguards against infringement of designs held by others
to a patent, a design is a territorial right limited to
the country in which the design has been registered. In
general, the registration of a design gives the proprietor
thereof the right (in the country concerned) to prevent
third parties from making, selling or importing the articles
bearing or embodying a design which is a copy, or substantially
a copy, of the protected design when such acts are undertaken
for commercial purposes.
term of a design in most countries is 10 years, subject
to the payment of annual renewal fees, but this term may
vary from country to country.
Procedure for obtaining design protection for your invention
first step (for our South African clients) to obtaining
design protection in several countries is normally the filing
of a design application at the South African Designs Office.
click on the title "South African Design" for more information,
in this respect.