The definitive and explanatory statements
The proprietor can choose to claim a design right in the whole or any part of his product. The purpose of the definitive statement is to set out the features of the design for which protection is claimed. Remember, it is a definitive statement, and so the wording of this statement is crucial: here, the proprietor defines the protection being claimed.
For example, if the design is for a teapot, the definitive statement can claim the whole teapot. This is referred to as an ‘omnibus’ statement. (Omnibus is a word — yes, you guessed it! — which comes from Latin, meaning for everything, for all. The original English word for an everyday bus was ‘omnibus’.) However, the designer may have taken an ordinary teapot, and designed a very fancy and innovative spout. The definitive statement would then be specific to the spout.
The definitive statement is especially important when it comes to enforcement. It must be used to interpret the scope of the protection given to the design.
The explanatory statement is different. The earlier trolley example does not have an explanatory statement, so we will use another design example. This one is for those advertising flags which swivel with the wind — we see them everywhere.
Back in 1997, a South African company obtained a design registration which looked like the one shown on the right.
The explanatory statement reads: ‘A flag or banner is shaped substantially like an inverted teardrop 10 and is adapted to be engaged by a flexible pole 12.’
The explanatory statement does not define the scope of the design right. The statement’s purpose is to be of assistance in understanding what the design is, or what it is supposed to be. However, it may also be used to assist in interpreting the scope of the protection.
Read regulation 15 of the Designs Regulations (1999).