Aesthetic or functional – Protect your design

aesthetic and functional designs
26 Apr 2017

Adams & Adams’ involvement with Elle SOLVE is part of a drive to foster the uniquely imaginative capacity of SA’s creatives – and to help those gifted individuals realise real economic benefit in respect of their intellectual property rights. We see it as an imperative that this showcase of individualism is protected. In terms of the artist we also need to provide a solution to the problem of general devaluation and under-appreciation of artistic works. This begins with the artist who needs to know his or her rights in terms of creativity.

South Africa is home to many talented designers whose work is highly regarded both locally and internationally.  Design protection is, however – to their detriment – often underestimated by local designers.

Making design protection a part of your creative repertoire should be part of your creative course of action. Registered design protection provides protection for the appearance of articles intended to be multiplied in an industrial process.

Both aesthetic and functional designs can be registered in South Africa. Functional designs are those with features necessitated by the function of the article. Aesthetic designs, which are extremely important in creative design, pertain to appearance of the article including shape, configuration, pattern or ornamentation.

Examples of articles suitable for aesthetic design protection include, furniture, lighting, textiles, door handles etc.

In order to ensure your design is protected it must be new. This means that the design should not have been revealed to the public before filing an application for registered design.  Although novelty (or “newness”) is a requirement before filing an application, the South African Designs Act does allow you to disclose your design before a design application – provided you file a design application within six months of the disclosure.

Designers need to take cognisance of the process of design protection in foreign countries however.  Several countries will not enable design protection if it has been disclosed prior to filing.  It is preferable then that South African design applications be filed prior to any public disclosure of the design protection.

Intellectual property is a vital aspect of your balance sheet, and registering your designs has an important role to play in your financial well being.  A registered design may be traded like any other asset.  You can sell it, or licence it others.  It therefore allows you to prevent others from using, making, importing or selling articles which look the same or similar to yours – safeguarding your professional reputation against copycats.

Don’t donate your creative works to others – register your designs!

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Mariette du Plessis

Mariëtte du Plessis is currently a senior partner in the Trade Mark Litigation section of the Trade Marks Department. She has been a partner in the firm of Adams &... Read more about Mariette du Plessis


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