In terms of the South African Designs Act, 1993 (“the Designs Act“) there are two types of designs which may be registered for protection. Namely, aesthetical designs and functional designs.
An aesthetic design relates purely to the appearance of the article such as the features of a pattern, shape, configuration or ornamentation of a design insofar as they appeal to and are judged by the eye, whereas a functional design relates to the features of a design that are necessitated by the function of the article to which the design is applied.
It is possible that an article may be capable of having aesthetic design and functional design.
In order for a proprietor of a design to apply for protection of his aesthetic design rights the article must be new and original. In the case of a proprietor seeking protection of his functional design, the article must be new and not common place in the art in question.
Aesthetical designs are protected for a duration of 15 years and functional designs for a duration of 10 years. After an initial period of three years, the design rights application must be renewed yearly upon the anniversary date of granting of the right.
A successful application for design rights provides protection in South Africa exclusively. In addition to local protection, an applicant of a South African design application may file foreign design applications in a country that is a member to the Convention of Paris for the Protection of Industrial Property (“the Paris Convention”) within six months of the earlier design application filed in South Africa and claim priority in member countries from the earlier South African application.
Application for protection of a design is made to the Companies and Intellectual Property Commission (“CIPC”). Should CIPC raise no objection to the application, CIPC will accept and register the design right which usually takes place within seven months from date of application during which period the design is formally examined and issue the applicant with a notice of registration.
Once CIPC issue an official registration certificate to the proprietor of the design right, all information that was submitted to CIPC in support of the design right will be open and accessible by the public for inspection.