The art of jewellery design protection – A South African perspective
27 Sep 2019
Jewellery, like all great crafts, is the domain of inspired, talented and creative designers who can blend the magic of metals, precious stones, natural materials and artistry with a vision to reveal magnificent works – sometimes simple and often highly complex. Nature is always a gift to these talented people whether by way of gorgeous gemstones, precious resources or the pure inspiration that the natural world lends to creativity. Legend, symbolism and cultural values all play out in this wonderful art form.
Living in a country like South Africa, there are many natural riches to inspire and create exceptional pieces of jewellery. Aside from some of the world’s most magnificent diamonds and gemstones, the flora, fauna and multi-cultural colourful nature of the country creates a true haven for artistic inspiration.
There are intellectual property laws globally that provide protection for jewellery designs which may vary according to jurisdiction including trade marks, designs, copyright, traditional knowledge and advertising laws. Below is a short note on the applicability of the trade mark law in South Africa.
Trade mark protection
Whilst many people automatically relate a trade mark to a brand name, slogan or a logo, The South African Trade Mark Act of 1993 (the Act) affords much broader protection for aesthetic elements of intellectual property. By definition, a trade mark must be distinctive in order to distinguish the goods or services for which it is registered from those of other traders in the same or similar field. The definition of a trade mark in the Act reads:
“a sign capable of being represented graphically including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container of goods or any combination of the aforesaid.”
As such, there are various options available on how best to protect jewellery designs and the trade marks that underpin the distinctiveness of these works. One need only think of some of the great jewellery houses of HÉRMES, CHANEL, FABERGE, MIKIMOTO and CARTIER and how the names, logos, signatures, use of numbers, patterns and ornamentation form part of their trade mark protection. Even packaging as exemplified by the famous TIFFANY BLUE BOX is protected as a trade mark. As such a careful and holistic approach should be adopted.
The key to good protection is how the trade mark is filed and particularly, in the cases of trade marks consisting of shapes, patterns, configurations and ornamentation, how the endorsement is crafted is key to ensuring the distinctive trade mark features are protected. Without an accurate and carefully drafted endorsement, the rights acquired may simply be worthless. Practically this requires a careful consideration of the trade mark material and how best to reflect this graphically to meet the requirements of the Act and be clearly interpreted when enforcing a trade mark. Seeking the advice of an intellectual property expert is always the best approach to secure optimum protection.
All jewellery designers should consider protecting their works to the optimum level. Today, customers are not necessarily looking for the biggest, and brightest but are interested in sustainability, environment friendly and conflict free products. Protecting the hard work of creative designers and harnessing the commercial value is the optimum result.
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