Introduction
As we noted under the heading ‘Where did IP originate?’, lawmakers realised early on that it was necessary to protect creations which came out of the fine arts: paintings, music, literature and the like. Towards the end of the 19th century, it became clear that a distinction had to be drawn between these works of pure art and works of an artistic nature but which had some functional purpose, or attribute.
The word design has its roots in the Latin word designo — meaning ‘to mark out, arrange or to sketch’. Anything having a shape as a result of human involvement is the product of design — whether it is the heel of a shoe, a milk jug, a chair, a car fender, a supermarket trolley — and even this book you are reading. Now, in one way or another, these products have functionality, so their design will combine elements of function and aesthetics. The bottom line is that although protectable designs do not have to be functional, many of them are nevertheless applied to functional objects.
The system of intellectual property protection rewards creativity. True creation is where something is produced out of nothing, but our laws are not so strict when it comes to intellectual property. Of course, a true creation will be protected, but Parliament (the lawmaker) just requires innovation to bring about intellectual property which will be protected. The word ‘innovation’ comes from the Latin word novus — it means ‘new’. Innovation is core to the registrability of designs — they must, at least, be new. We will examine what this means and how it is measured and assessed.
Because the creation of designs involves knowledge, artistic ability, creativity, possibly some science, and effort, it is not too difficult to see that there is no reason why they should not also enjoy protection — just like trade marks, copyright and patents. Patents, by the way, are concerned with how an invention works — for example, how a gadget does something. Designs, on the other hand, concern what the thing looks like.
The registered protection of intellectual property in designs is regulated by a statute called the Designs Act 195 of 1993. There is also a Registrar of Designs at CIPC, who administers the designs register.
It is not necessary to register your design. However, there are significant advantages to doing so.
Let’s take a look at what can be considered a registrable design in terms of the Designs Act.